SUPREME COURT OF THE STATE OF NEW YORK Index Number : 116942/2008 PATROLMEN'S BENEVOLENT .- 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 Affldavlts - Cross-Motion: Yes X No Upon the foregoing papers, it 1s ordered that thls motion Dated: Check one: x FINAL DISPOSITION Check if appropriate: DO NOT POST - NEW YORK COUNTY PART 46 INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. PAPERS NUMBERED I rk qyMkA - NON-FINAL DISPOSITION
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________________---------_-__-___-------------_ X --------__---------- hi the Matter of the Application of PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., Petitioner, hidex No. 116942/08 DECISION AND - against - JUDGMENT The Police Benevolent Association (the i. BA), as Articlc 78 petitioner, seeks to nullily portions of interim and final decisions issued by the Ncw York City Board of Collective Bargaining in an improper-practice proceeding ornmenced by Amryl James-Reid, a fornlcr policc officcr, against the PBA and the City. In r hc instant proceeding, the Office of Collective Bargaining (OCB), tlic City, and Ms. James-Rei 1 w ere served as respondents, but only thc former two have appeared. OCB has filed a ni1 ti on lo dismiss, raising a statute of limitations defense as wcll as substantive grounds. In opp 1 s ing, the PBA proposes a novel reading of tlic appl icabl e statute. Tllc tiiidcrlyiiig procccding before the Board of Collcctivc Bargaining colicenled Ms. Jariics-Reid’s claims against thc City and the PBA in relation to her defense against scvcral ~iiiscoiid~cchta rges by the City Police Department, charges thal LlltiInately ended in the tcrmiiiatioii of her sixteen-year carccr on tlic police force. The nLlb of Ms. James-Reid’s
iiiipropcr-practice petition was that, over the course of the sevcral years during which she had undergone a serics of iiivcstigatory and disciplinary hearings, she had been misadvised by a niember of a law f‘irni that was on retainer to (and had been referred to her by) the PRA, and that, by leaving her to such lawycr’s devices, the PBA had breached a duty of fair representation. In 311 intcrim dccision on a motion to dismiss, the Board of Collectivc Bargaining observed that, assurnirig the truth of Ms. Jaiiics-Reid’s allegations for purposes of the motion, (1) thc private lawyer could be deemed the PBA’s agent in relation to her defense and (2) on the basis of such agency, any failings by thc lawyer in such relation would be attributahlc to the PBA as a breach of a duty of fair rcprcsentation. Following an evidentiary hearing, the Board’s final decision, dated July 30, 2008, in effect adhered to both such views of the law, but nevertheless disrnisscd Ms. Jarncs-Reid’s petition as unsupported by her prods concerning alleged legal malpractice. In response, the PEA coimnenced this Article 78 proceeding on December 18, 2008, challcngiiig the jurisdictional basis and merits 01 the Board’s legal rulings on the fdir representation issues. OCR’s liiiiitatioiis defense iiiiist or course be evaluated as a threshold matter. As a general rulc, timcliness of an Article 78 petition is goveined by section 2 17 of the CPRL, which in relevant part provides that “[ii]iiless a shorter time is provided in thc law authorizing the proceeding, a proceeding against a body or officcr iiiiist be commenced within four months after thc dctcxmiiiation to be reviewed becomes ha1 and binding upon tlic pctitioiier .....” As it happens, the law authoriing the instant proceeding, section 12-308(a) 01 the City’s Administrative Code, does provide for “a shorter time.” ‘I’hus, under section 12-308, “Any ordcr of thc hoai-d or collective bargaining ... shall be ... reviewablc uiidcr- [Article 781 upon petition filed by an aggrievcd pai-ty witliiii thirty days altcr scrvicc by 1-egisteredo r ccrtificd iiiajl of a 2
i copy of such order upon such party.., ,” Tt is uiidisputed that the PBA was served by a certified mailing OII August 1, 2008, which was receivcd by thc PRA on August 4, 2008. hi otlicr words, in view ofthe 30-day lirnitatioiis pcriod, the uiitiineliness of the PBA Article 78 filing would ordinarily appcar patcnt. The PBA, liowcvcr, raiscs scvcral arguments for the proposition that the appearance of uiitimcliiiess is in this case deceptive. Two of such arguments are hascd upon another undisputed fact, i.P., that service upon Ms. Iames-Reid pursuant to section 12-308 was not duly made uiitil November 13, 2008. First, tlic PBA argues that the limitations period does not begin to nin until all parties to the proceeding before the Board have been scrvcd. Thc PBA does not cite any authority for its implicit proposition, i.e., that section 12-308 does not mean exactly what it says. Aftcr all, the statute iii ternis pcgs the conimeiiceiiieiit of the limitations period to scrvicc “upon such party.” Had the statute’s framers actually intcndcd the triggering event to be service “completed upon all of the parties,” they could vcry casily have said as much. This is iiot to overlook the PBA’s contention that an inequity would result if the statute were applied pcr its plain meaning. As the PBA describes it, thc spccter it fears is “that two parties to ail action would have widely differciit timc pcriods in which to appcal.” But such result is onc that apparently could readily bc avoidcd by the earlier-served party, since the terms of section 12-308 do not suggest that service can be effectuatcd only by the agency. Thus, where the agency has dclaycd service on one party, an earlier-served party apparently may vcntur-e into the breach by scrving the other party in accordarice with the statute’s requirements. Moreover, given the purpose of a limitations pcriod (to put to res1 the claims ofa party who has had (air 3
notice and opportunity to raise those claims), this is not an instance in which the litcral application oT a statute would bc irrational and thus prohibitivc. Second, the PBA argues that OCB should not be allowed to benefit from its own error, which is to say the lag between scrvice on the City and the PBA, 011t he one hand, and service on Ms. James-Reid, on the other hand. The statute’s terms, however, do not suggest that the agency must serve its decision 011 all parties coilcurrently and thal, if it does riot do so, the liniitations- period is lolled until all parties have been servcd. Nor does the PBA cite any other authority as the source of such requirement and such result. This is not to ignore a November 13, 2008, letter in which an OCB lawyer confessed “office error” in having not already servcd Ms. James-Reid. But this evidence of his office’s lack ofpuiictiliousncss cannot subslitutc for thc citation of legal authority that might support the PBA’s position in this conncctioii. The PEA further argues that the substance of the OCB lawyer’s letter, which was addressed to counsel for all of the parties in the improper practice proceeding, in any event is sufficient ground to defeat OCB’s limitations defense. The body of the letter read as follows: I writc this letter to inform the parties that, due to office error 011 thc paid of this Office, the decision in [this] ... niattcr was not properly mailed to counsel for the petitioner, and to cnclose the decision to counscl. Counscl should be aware that the time in which to appeal a decision of the Board does not begin to nin until scrvice has been eKectiiated, and in this case, the present mailing constitutes service on the petitioner. Please feel free to contact me with any questions or coiiceim you niay have; I apologize on behalf-of the OCR for tlic inconvcnicnce caused by thc cmor in sci-vicc. I1 is not clear whether the PBA is proposing that this lelter is a basis for ail estoppel, a tenii that it pcrliaps dcclines to invoke cxprcssly in vicw of the prcccdciits to the effect that an 4
agcncy cannot as a rde be estopped (Mutter ofPur.kvi~wA ssocs. v City ofivew York, 71 NY2d 274, 2S2). But even if, arguendo, some circumstaiicc might wmant an estoppel against OCB on the basis of a lcttcr froni its counsel, there is no such circumstaiicc hcre. For one thing, a iicccssary eleineiit of cstoppel is reliance, aiid this letter was reccivcd by the PBA after its time to file the instant petition had already run. For another thing, cvcn if thc lctter had been received months earlier, its contents made no rnisrepreseiilatioii upon which the PBA might claim to have relied. To be sure, there can be cases where an agency crcatcs an ambiguity that, lor limitations purposes, must be resolved against it (see Mungy v Nussau C’uunty C’ivil Service Comm ’n,4 4 NY2d 352). Biit, as one legal analyst has observed, “the clarity of a rcgulation or statute may climiiiatc what might otherwise be coiisidcrcd an ambiguity in the agency’s communications” (Alexander, 2001 Practice Conimentarics, McKinney’s Cons Laws of NY, Book 7B, CPLR 21 7: 1 , at 521). Section 12-308 can rightly claim such clarity. Finally, thc PBA iiiaintaiiis that, dcspitc the clear language of section 12-308, the Board’s decision was not reviewable, and thus the limitations period did not begin to run, until service on Ms. James-Reid had been effected, because until such time certain administrative remedics had reiiiaiiied available to her. For the sake of argument, it will be assuiiied that the adrninistrativc reiiicdics to which the PBA adverts remained open to Ms. James-Rcid as the PBA would havc it (hzr~?; et‘6 1 RCNY tj 1-lO[k], [I]). The short answer to thc PBA’s finality argiiment neverthclcss remains that, as witncss thc abovc-quotcd ternis of sectiori 21 7 of the CPLR, tlic cxliaustion requirement is satisfied whcii the party whose timeliness is at issue has exhausted its own ah1i ni st rat i vc rcm cd i cs. 5
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