New York State Court of Claims

New York State Court of Claims

GILDAY v. THE STATE OF NEW YORK, #2007-033-241, Claim No. 112686, Motion No. M-72605


Synopsis



Case Information

UID:
2007-033-241
Claimant(s):
JOHN W. GILDAY, as Executive Director of THE ELECTRICAL INDUSTRY BOARD OF NASSAU and SUFFOLK COUNTIES, NEW YORK, and JOHN DOE and JANE DOE, beneficiaries of the TRUST FUNDS administered by THE ELECTRICAL INDUSTRY BOARD OF NASSAU and SUFFOLK COUNTIES, NEW YORK
Claimant short name:
GILDAY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112686
Motion number(s):
M-72605
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Helms & Greene, LLCBy: James J. Mahon, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Susan M. Connolly, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim to recover contributions owed to employee fringe benefit funds pursuant to 29 USC §1001 et seq. (“ERISA”) and 29 USC §152 et seq. (“LMRA”). In addition, claimant asks to audit the books and records of defendant.

The claim is brought by John W. Gilday (hereinafter “claimant”) as Executive Director of the Electrical Industry Board of Nassau and Suffolk Counties, New York (hereinafter “EIB”). The claim also names “John Doe and Jane Doe” as beneficiaries of the Trust Funds.[2] No individual beneficiaries are named or pled. The claim arises from members of the International Brotherhood of Electrical Workers Local 25 that are employed at the State University of New York at Stony Brook, Stony Brook, New York. The claim itself states that it accrued on February 27, 2006, but the supporting exhibits of claimant’s opposition papers show that this is a claim for contributions from defendant going back over 12 years.

Prior to answering the claim, defendant moves to dismiss the claim on several grounds[3]. First, defendant alleges that claimant has no standing to sue. Next, defendant argues the Court lacks jurisdiction over the causes of action brought by claimant. Lastly, defendant argues the claim is untimely.

As to the cause of action under the LMRA, defendant argues that 29 USC §152(2) does not include a state or any political subdivision as an employer and thus, no action can be maintained against it under the LMRA. 29 USC §152(2) states:
The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C.A. § 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization. (Emphasis added).

Claimant makes no argument in opposition to defendant’s position of the LMRA cause of action. The Court notes that in the corresponding New York State Labor Relations Act, Labor Law §715 states that the article is not applicable to employees of the state or any political or civil subdivision.

Both parties agree that the State University of Stony Brook is a state agency. The Court finds that LMRA does not apply to defendant (see Ayres v International Brotherhood of Electrical Workers, 666 F2d 441). Thus, the cause of action under the LMRA is dismissed.

The Court now turns its attention to the ERISA cause of action. Defendant argues any cause of action in this matter is reserved to the district courts of the United States (29 USC §1132[f]). In opposition, claimant argues that state courts have concurrent jurisdiction over ERISA claims (29 USC §1132([e]).

29 USC §1132 (e)(1) states:
Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section.

According to the United States Code, state courts will have concurrent jurisdiction over ERISA claims only if the action is brought under 29 USC 1132(a)(1)(B) and (a)(7). In pertinent part, those subdivisions state:
(a) Persons empowered to bring a civil action

A civil action may be brought–

(1) by a participant or beneficiary–

(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;

(7) by a State to enforce compliance with a qualified medical child support order (as defined in section 1169(a)(2)(A) of this title);

Therefore, according to the claim, the only proper parties are “John and Jane Doe”. As to claimant, the district court of the United States is the appropriate forum for this claim as this Court does not have jurisdiction over the claim brought by a fiduciary.

The Court dismisses the cause of action under ERISA. Further, the Court dismisses the claim of “John Doe and Jane Doe”. The individual causes of action must be separately pled with specificity according to Court of Claims Act §11 (see Lepkowski v State of New York, 1 NY3d 201).

The Court does not reach defendant’s remaining arguments.

Based upon the foregoing, defendant’s motion to dismiss is granted. The Clerk of the Court is directed to close the file.


March 30, 2007
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[2].Claimant’s affidavit in opposition to the motion also name Roy Richey, as Chapter Manager of the Long Island Chapter of the National Electrical Contractors Association, Inc., in the caption and refer to him in the opposition papers. The Court strikes any reference to Mr. Richey and his organization from the papers, as he was not named in the claim as a party.
[3].The following papers have been read and considered on defendant’s motion: Notice of Motion dated December 1, 2006 and filed December 4, 2006; Affirmation of Susan M. Connolly, Esq. with annexed Exhibits A-B dated November 30, 2006 and filed December 4, 2006; Affidavit of Barbara D. Chernow dated October 13, 2006 and filed December 4, 2006; Defendant’s Memorandum of Law in Support of Motion to Dismiss the Claim dated November 30, 2006 and received December 4, 2006; Affidavit of John W. Gilday with annexed Exhibits A-B sworn to December 22, 2006 and filed December 26, 2006; Memorandum in Opposition to Defendant’s Motion to Dismiss dated December 26, 2006 and received December 26, 2006.