88 A.D.2d 934 | N.Y. App. Div. | 1982
— In an action to recover a widow’s death benefit pursuant to a provision of the collective bargaining agreement existing between defendant, the decedent’s employer, and the International Union of Operating Engineers, AFL-CIO, Local 891, defendant appeals from an order of the Supreme Court, Kings County (Composto, J.), dated August 26, 1981, that denied its motion for summary judgment and granted plaintiff’s cross motion to dismiss the four defenses interposed in the answer. Order reversed, on the law, with $50 costs and disbursements, defendant’s motion for summary judgment dismissing the complaint is granted, and the cross motion is denied. Plaintiff’s remedy lies in the grievance procedure set forth in the contract between her deceased husband’s union and his employer. Plaintiff, the widow of a public school custodian, commenced this action upon defendant’s implicit refusal to pay to her a death benefit of $25,000 which she claimed pursuant to article 16 of the collective bargaining agreement between defendant and the union of which decedent was a member. Defendant moved for summary judgment on the ground that plaintiff was