State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 518293 

________________________________

STEPHANIE L. ZITO,

Appellant,

v

NEW YORK CITY OFFICE OF PAYROLL MEMORANDUM AND ORDER

ADMINISTRATION et al.,

Respondents,

et al.,

Defendant.

________________________________

Calendar Date: May 27, 2015

Before: Peters, P.J., Lahtinen, Garry and Devine, JJ.

__________

Stephanie L. Zito, Davenport, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York City

(Elizabeth I. Freedman of counsel), for New York City Office of

Payroll Administration and others, respondents.

__________

Peters, P.J. 

Appeal from an order of the Supreme Court (Lambert, J.),

entered December 6, 2013 in Delaware County, which, among other

things, granted defendants' motions to dismiss the complaint.

From 1987 through 1992, plaintiff was employed part time by

defendant New York City Department of Education (hereinafter DOE)

as a substitute teacher and was required to pay a Federal

Insurance Contributions Act (hereinafter FICA) tax on her

earnings. In 1988, the Court of Appeals held that part-time city

employees were entitled to join the New York City Employees'

Retirement System (see Doctors Council v New York City Employees'
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Retirement Sys., 71 NY2d 669, 677 [1988]) and, as a result of

that decision, the Social Security Administration and the

Internal Revenue Service determined that part-time city employees

were entitled to a refund of FICA taxes that they had erroneously

paid. To obtain the refund, eligible part-time employees were

required to sign a consent form authorizing defendant New York

City Office of Payroll Administration (hereinafter OPA) to apply

for the refund on his or her behalf. 

With assistance from DOE and defendant United Federation of

Teachers (hereinafter UFT), OPA identified plaintiff as an

employee eligible for the refund and mailed letters to her last

known address in 1994, 1997 and 1998, requesting that she

complete and return the enclosed claim authorization form.

Plaintiff, who had moved in 1992, never received the letters and,

thus, did not submit a claim authorization form before the

Internal Revenue Service and the Social Security Administration

ceased accepting refund claims in 2006. Plaintiff learned of the

refund program in 2007 and, in the years that followed, made

numerous unsuccessful efforts to obtain her refund. 

Plaintiff commenced this action against DOE, OPA and

defendants New York City Comptroller John C. Liu and former New

York City Comptroller William C. Thompson Jr. (hereinafter

collectively referred to as the City defendants), as well as UFT,

asserting causes of action sounding in, among other things,

negligence and breach of fiduciary duty. The City defendants and

UFT separately moved to dismiss the complaint, and plaintiff

moved for a default judgment against the City defendants on the

basis that their motion was untimely served. Supreme Court

denied plaintiff's motion and granted defendants' motions.

Plaintiff appeals.1

We affirm, albeit primarily on different grounds than

relied upon by Supreme Court. Initially, the causes of action

sounding in negligence, fraud, breach of fiduciary duty and

1 This Court granted plaintiff's motion to withdraw and

discontinue her appeal against UFT (2015 NY Slip Op 65159[U]

[2015]).
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breach of the duty of fair representation – specifically, the

second, third, fourth and seventh causes of action – must be

dismissed against the City defendants because plaintiff did not

serve a notice of claim upon them (see General Municipal Law §

50-e [1] [a]; Montano v City of Watervliet, 47 AD3d 1106, 1109

[2008]; Serkil, L.L.C. v City of Troy, 259 AD2d 920, 922 [1999],

lv denied 93 NY2d 811 [1999]). Indeed, service of a notice of

claim upon a municipality is a condition precedent to maintaining

a tort claim against municipal defendants (see General Municipal

Law §§ 50-e [1] [a]; 50-i [1]; Barchet v New York City Tr. Auth.,

20 NY2d 1, 4 [1967]; Smith v Town of Long Lake, 40 AD3d 1381,

1384 [2007]; Matter of Tara V. v County of Otsego, 12 AD3d 984,

985 [2004]).

Plaintiff's remaining causes of action must be dismissed

for failure to state a claim. In resolving a motion to dismiss

for failure to state a cause of action, we "liberally construe

the complaint, 'accept the facts as alleged in the complaint as

true, accord [the] plaintiff[] the benefit of every possible

favorable inference, and determine only whether the facts as

alleged fit within any cognizable legal theory'" (Beesmer v

Besicorp Dev., Inc., 72 AD3d 1460, 1461-1462 [2010], quoting Leon

v Martinez, 84 NY2d 83, 87-88 [1994] [internal citation

omitted]). However, we will not accept as true factual

allegations and legal conclusions that are "'inherently

incredible or flatly contradicted by documentary evidence'"

(Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011], quoting Quail

Ridge Assoc. v Chemical Bank, 162 AD2d 917, 918 [1990], lv

dismissed 76 NY2d 936 [1990]).

Applying these principles here, we conclude that

plaintiff's first, fifth, sixth and eighth causes of action fail

to state a claim. In her first cause of action, plaintiff merely

alleges damages, without specifying how she is legally entitled

to them (see Union Brokerage v Dover Ins. Co., 97 AD2d 732, 733

[1983]). Plaintiff's fifth cause of action, in which she alleged

that OPA, Thompson and Liu violated their duties "in the

management and disposition of corporate assets committed to

[their] charge" (Banking Law § 7017 [1] [a] [1]), also fails, as

plaintiff did not timely authorize the United States Treasury to

release her FICA refund to OPA. As for her sixth cause of
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action, even if properly asserted against OPA and DOE, Labor Law

§ 727 does not provide plaintiff with a private right of action

to enforce a union "officer's financial reporting and accounting

obligations" (Ash v Scanlon, 19 AD3d 187, 188 [2005]). Finally,

plaintiff's eighth cause of action, which alleged that the City

defendants violated the Court of Appeals' ruling in Doctors

Council v New York City Employees' Retirement Sys. (71 NY2d 669

[1988], supra), patently lacks merit because OPA obtained

plaintiff's last known address from DOE and UFT, sent a claim

authorization form to this address on three separate occasions

and obtained FICA refunds for eligible employees who completed

and returned the form. Accordingly, the City defendants' motion

to dismiss the complaint was properly granted.

Plaintiff's remaining contentions, to the extent they have

not been rendered academic by our decision, have been considered

and rejected.

Lahtinen, Garry and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court