!j ·· PREME COURT OF THE STATE OF NEW YORK V I ; /] , NEW YORK COUNTY 1\\ \v 1 ROSE~~~ci~RRF.S V\ (PRJSENT: rA \ Index Number: 106268/2011 v \ ROBERTS, LILLIAN VS NYC OFFICE OF COLLECTIVE Sequence Number : 002 DISMISS The following papers, numbered 1 to __ , were read on this motion to/for------------Notice of Motion/Order to Show Cause-Affidavits Exhibits Answering Affidavits-Exhibits----------------Replying Affidavits-----------------.---Upon the foregoing papers, tt Is ord8red that this motion is (J/\ w (.) i= (/') :::> ""') 0 1-0 w a::: a::: .W u.. . . w a::: •• > ... -1 -~ ...1 z ::~·o u.. (/') t;;5 g w ; a::: (!) a UJ : :: z -(1) ;: w 0 ...1 (/') ...1 <( 0 (.) u.. z -w :r: 0 1-i= a::: 0 0 :E LL. Dated: ±! t 'L,lfl\?.--1. CHECK ONE: ..................................................................... • 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED " ~~~KIF APPROPRIATE: ......................................., ..... .. 0 SETTLE ORDER 0DONOTPOST ~ ) PART d.-0 INDEXNO. 'l0~ Zibf{~ MOTIONDATE J'!Jt--' _ MOTION SEQ.~ \ \ I No(s). r r I ;).. I 3 1 I No(s). ....J 4 1/_,__f ___ I No(s). t. 1 I ( r : q tD· ':> I 'C7.!. I j (i J..JI\ k J-' J ~ C) , -.__, r-f -J APR 30 2012 ~ ,J.S.C ROBERT E. TORRES CASE DISPOSED JU0Gt 6 ~N-FINAL DISPOSITim 0 DENIED 0 GRANTED IN PART 0 OTHEF 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCl
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, PART 29 PRESENT: HONORABLE ROBERT E. TORRES, J.S.C. In the Matter of the Application of LILLIAN ROBERTS, as Executive D~~ctor ofDistrict Council37, American Fedelltion of State, INDEX NUMBER: 10 6268i20 11 ~~ ' 0 County and Municipal Employees, AFL-CIO, and 0 PATRICK BAHNKEN, as President ofLocal2507 of District Council37, AFSCME, AFL-CIO, VINCENT V ARIALE, as President ofLocal3612 of District Council 37, AFSCME, AFL-CIO, Petitioners, w a-For a judgment Pursuant to Article 78 ofthe Civil Practice Law and Rules, -against-NEW YORK CITY OFFICE OF COLLECTIVE F ll ED BARGAINING, BOARD OF COLLECTIVE, Marlene Gold, as Chairperson, and THE CITY OF NEW YORK, Michael R. Bloomberg, as Mayor, APR .30 2012 THE MAYOR'S OFFICE OF LABOR RELATIONS, James Hanley, as Commissioner, THE F(RE NEW YORK DEPARTMENT OF THE CITY OF NEW YORK,. COUNTY CLERK'S OFFICE Salvatore J. Cassano, as Commissioner, Respondents. Petitioner brings the instant petition pursuant to Article 78 of the Civil Practice Law and Rules seeking to move this Court to issue an Order directing Res ' pondent Board of Collective Bargaining to reverse its decision and declare that the Fire Department of the City of New York's unilateral implementation of a "zero tolerance" dru~ testing policy violated Section 12-306( a)(l) and (a)(4). Respondents New York City Office of Collective Bargaining, Board of Collective, Marlene Gold, as Chairperson (collectively "Board") move this Court to dismiss the instant petition pursuant to CPLR § 7804(f) and uphold its decision in DC 37,4 OCB2d 19 (BCB 2011) dated April 28, 2011. The C . i ty ofNew York; Michael R. Bloomberg, as Mayor of the City ofNew York; the Mayor's Office of Labor Relations; the Fire Department of the City of New York; Salvatore J. \ Page 1 of 3
Cassano, as Commissioner of the Fire Department of the City of New York (collectively "City Respondents") cross moves for a judgrl\cnt, pursuant to section 7803(3) and Rule 3211 (a)(7) of the Civil Procedure dismissing the petition on the grounds that the petition fails to state cause of action, entering judgment for City respondents, and granting City Respondents costs, fees, and disbursements. For the purposes of this decision, said applications are hereby consolidated. Article 78 of the CPLR provides for limited judicial review of administrative actions. Administrative agencies enjoy broad discretionary power when making determinations on matters they are empowered to decide. Section 7803 provides in relevant part that "[t]he only questions that may be raised in a proceeding under this article, are ... 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence." In deciding whether an agency's determination was supported by substantial evidence or was arbitrary, capricious or a:n abuse of disSetion, the reviewing court is limited to assessing whether the agency had a rational basis for its determination and may overturn the agency's decision only if the record reveals that the agency acted without having a rational basis for its decision. See, Heintz v. Brown, 80 N.Y.2d 998, 1001 (1992) citing Pell v. Board ofEducation, 34 N.Y.2d 222,230-31 (1974); Sullivan County Harness Racing Association v. Glasser~ 30 N.Y.2d 269, 277 (1972). Substantial evidence is more than "bare surmise, conjecture, speculation or rumor" and "less than a preponderance of the evidence." 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N. Y.2d 176, 180 (1978). Substantial' evidence consists of "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Id. See, also Consolidated Edison v. New York State DHR, 77 N.Y.2d 411,417 (1991). Where the Court finds the agency's determination is "supported by facts or reasonable inference that can be drawn from the record and has a rational basis in the law, it must be confirmed." American Telephone and Telegraph Co. v. State Tax Commissio\er, 61 N.Y.2d 393, 400 (1984). Petitioner's Article 78 Petition must be denied as the decision was consistent with applicable law and the evidence, rational and within the proper exercise of the New York City Board of Page 2 of 3
Collective Bargaining. The Respondent's decision was supported by substantial evidence, and was not arbitrary, capricious or an abuse of discretion. On Article 78 review, this Court is limited to assessing whether the agency had a rational basis for its determination. The relevant record is more than sufficient to make a showing of"substantial evidence" and for a finding that the Respondent's \ determination was not without foundation. Since Respondent's decision is "supported by facts or reasonable inferences that can be drawn from the record and have a rational basis in the law, it must be confirmed." American Telephone and Telegraph Co., 61 N.Y.2d 393,400 (1984). Accordingly, it is hereby ORDERED that the Board's motion to dismiss and the City Respondents' cross-motion to dismiss are hereby granted and the petition is denied and dismissed, it is further ORDERED that the Clerk shall enter judgment for the City Respondents. This constitutes the decision and order of this Court. \ Dated: April 12, 2012 Hon. Robert E. Torres F ll ED APR 30 2012 !·JEW YOHK \ COUNTY CLEHK'S OFFICE Page 3 of 3
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