Grahame v. Rochester Teachers Ass'n

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion to dismiss the complaint, which alleges a cause of action for negligent misrepresentation. Plaintiff alleges that defendant’s representative provided erroneous information to plaintiffs decedent regarding her retirement benefits (see, Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417). We reject the contention of defendant that the complaint must be dismissed because plaintiff failed to allege that the individual members of defendant union ratified the acts of their representative. Plaintiff is not required to allege ratification of the alleged negligent act where the action against defendant union *964is based on the negligence of its agent “in the course of performing an essential activity of the [union]” (Torres v Lacey, 5 Misc 2d 11, 13, mod on other grounds 3 AD2d 998). Defendant further contends that plaintiffs cause of action is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems. We disagree. The collective bargaining agreement does not address employees’ retirement benefits, and thus the alleged negligent misrepresentation action was not subsumed by the duty of fair representation (see, McClary v Civil Serv. Empls. Assn., 133 AD2d 522; see generally, United Steelworkers v Rawson, 495 US 362, 371). (Appeal from Order of Supreme Court, Monroe County, Polito, J.— Dismiss Pleading.) Present — Lawton, J. P., Wisner, Hurlbutt, Callahan and Balio, JJ.