Badman v. Civil Service Employees Ass'n , 91 A.D.2d 858 ( 1982 )

— Order reversed, without costs, defendant’s motion granted and complaint dismissed. Memorandum: Plaintiff’s decedent, Richard Kise, brought this action against the defendant, Civil Service Employees Association (CSEA), for breach of its duty of fair representation. In the complaint, plaintiff states that the association refused to provide Kise with an attorney to represent him in the arbitration of a grievance he filed with his employer, Wayne County Sheriff’s Department. Plaintiff alleges that the defendant, CSEA, acted in bad faith under political pressure exerted by county officials motivated by Kise’s support of a candidate for Sheriff whom the county officials opposed. Defendant moved for summary judgment dismissing plaintiff’s complaint. Special Term denied the motion, and defendant appeals. The order of Special Term must be reversed and defendant’s motion for summary judgment granted. To sustain a cause of action for breach of the duty of fair representation there must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives (Motor Coach Employees v Lockridge, 403 US 274, 299, 301; Humphrey v Moore, 375 US 335, 348). A plaintiff opposing a motion for summary judgment must lay bare his proof in evidentiary form and raise an issue of fact sufficient to send to the jury (Indig v Finkelstein, 23 NY2d 728). He cannot rely upon the hope that somehow, on cross-examination of the defendant’s witnesses, he can establish his case (Trails West v Wolff, 32 NY2d 207, 221; see Bachrach v Farbenfabriken Bayer AG., 36 NY2d 696, 697). Here, the affidavits submitted by the defendant, CSEA, in support of the motion for summary judgment, contain evidentiary facts showing that it acted in good faith. The local CSEA representatives approved Mr. Rise’s request that CSEA provide an attorney, and the CSEA official in the central office in Albany swore that he made the decision not to provide an attorney based solely upon his consideration of the merits of the grievance, without any communication, directly or indirectly, from the local CSEA representatives. In opposition to the motion, plaintiff has failed to come forward with facts sufficient to defeat the motion for summary judgment. The sole affidavit in opposition was sworn to by plaintiff’s attorney and it contains no facts either disputing the matters set forth in the defendant’s affidavits or supporting plaintiff’s allegation that the defendant breached its duty of fair representation. Concur — Simons, J. P., Hancock, Jr., Boomer and Moule, JJ.