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Union Immunity from Suit in New York

42 Pages Posted: 26 Jul 2006  

Mitchell H. Rubinstein

New York Law School; Rutgers University School of Management and Labor Relations


One of the best keep secrets in New York law is that most labor unions are immune from legal liability simply because they are organized as an unincorporated association. In jurisdictions such as New York, which follow common law, unions have this immunity because plaintiffs cannot met the stringent common law pleading requirements applicable to unincorporated associations, to wit, it must be alleged, and ultimately established, that the conduct complained of was approved of and ratified by each and every member of the association. Thus, the form in which a labor union is organized has a significant impact on its potential for legal liability. This is reminiscent of the forms of actions utilized in the Middle Ages where the form of the action determined whether a party had any remedy.

This Article surveys union liability in this important and little understood area of law. It concludes that the common law pleading requirements of Martin v. Curran make little sense today, particularly when applied to labor unions. Public policy is certainly not furthered by blind obedience to an ancient common law doctrine.

Surprisingly, there is no academic commentary which address this important issue under New York law or the seminal case in this area, Martin v. Curran. However, Martin v. Curran continues to be relied upon in order to dismiss cases against unions even though this case has been severely criticized by a number of courts. Just recently, the First Department upheld the dismissal of a tort action against a union because the common law pleading requirements of Martin v. Curran could not be met. That 2006 decision generated a significant dissent by Justice Saxe, who stated that this dated rule should be abandoned. Salemeh v. Toussaint, 25 A.D. 3d 411 (1st Dept. 2006)(Saxe, J., dissenting).

Keywords: labor law, duty of fair representation, martin v. curran, unions, new york law

JEL Classification: K31, K41, J50, J51, J53, J58

Suggested Citation

Rubinstein, Mitchell H., Union Immunity from Suit in New York. New York University Journal of Law and Business, Vol. 2, No. 3, pp. 641-682, Summer 2006. Available at SSRN:

Mitchell H. Rubinstein (Contact Author)

New York Law School ( email )

52 Broadway, 9th Floor
New York, NY 10004
United States
212-533-6300 (Phone)
212-995-2347 (Fax)


Rutgers University School of Management and Labor Relations ( email )

New Brunswick, NJ
United States

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