SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: Paul Wooten PART Justice lndex Number : 104481 12012 SERGEANTS BENEVOLENT INDEX NO, VS. MOTION DATE CITY OF NEW YORK SEQUENCE NUMBER : 002 MOTION SEQ. NO. DISMISS The following papers, numbered 1 to , were read on this motion to/for Notice of Motion/Order to Show Cause -- Affidavits - Exhibits I ttols¡ Answering Affidavits rols¡. - Exhibits I Replying Affidavits I tto(s). upon the foregoing papers, it is ordered that this motion ¡t deCiågd \n QCC-çIÊ.ç\ê¡C¿ N \'\h{h¿ @ dec-\-:\on \n çncù'i¡cr o t¡J t-U f ' o o l¡J É. É. l l¡ t J UJ É. J I J z F l Ð r o (t o UJ t¡.l o-ú U' o z FILËË) t¡l ú. F U) o DEC 0 e 2013 l¡J U) o o lt COUNTY CL ERK' FFICE z l¡J o þ NEW YO o lo É l.L = Dated: rzl ' 5 lr 3 J.S.C I Paul Wooten r. cHEcK oNE: .....,.,.... I $.cnse DrsposED I t¡oru-rl¡¡AL DlsPoslrloN 2. cHEcK As AppRopRtArE: .........,............,..,.MOTION lS: I e nnNreO D OeruleO I Cnn¡¡reD lN PART I Oft¡en 3. CHECK IF APPROPRIATE IserrleoRDER IsuaunoRDER ! oo Nor posr I rloucnnY APPoINTMENT I nereneruce
SUPREME COURT OF THE STATE OF NEW PRESENT: HON AUL WOOTEN Justíce ln the Matter of the Application of SERGEANTS BENEVOLENT ASSOCIATION THE CITY OF NEW YORK, INC. ANd PATROLMEN'S BEN EVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. Petitioners, \ -against- lr For a Judgement Pursuant to the Provisions of Article 78 of the New York Givil Practice Law and Rules, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, THE CITY OF NEW YORK OFF¡CE OF LABOR RELATIONS, THE NEW YORK CITY BOARD OF COLLECTIVE BARGAINING, and MARLENE GOLD, as Chair of the New York City Board of Collective Bargaining, Respondents. e 78. Notice of Motion/ Order to Show Cause - Affidavits Answering Affidavits - Exhibits (Memo Replying Affidavits (Reply Memo Cross-Motion: EY"= f ruo Motion sequences 001 and OO2 are hereby Petitioners Sergeants Benevolent Association patrolmen's Benevolent Association of the City of Unions) brought this proceeding on December 19,2012, seeking to annul a Decision and Orderof the NewYork Page \ YORK _ NEW YORK COUNTY PART 7 OF INDEX NO. 10448 1t12 MOTION SEQ, NO 001 ii .. /, rl !-:. /) D â 0 ia iÎ ?. û i3 l'4-c &n: *,", 1¡1f +t;r'.i-¿ FILED DEC 0 s 2013 y petitionPr?#N4lmm?*FFcE PAPERS NUMBERED - Exhibits ... 2 consolidated for purposes of disposition. of the City of New York , lnc. (SBA) and New York, lnc. (PBA) (collectively, the pursuant to Article 78 of the CPLR City Board of Collective Bargaining, 1 of 6
(BcB) dated November 13,2012 and postmarked Decision dismissed petitioners'Verified lmproper 2007, pursuant to New York City Collective Bargaining challenged the action by the City of New York and (NYPD) (collectively, the Municipal Respondents) all police personnel to automatically undergo blood personnel discharge a weapon that results in a death Petitioners claim that BCB, after hearing their petition, related to discipline and to the investigation of crimes, in this instance is not a mandatory subject of collective and PBA. Petitioners contend that the requirement subjects of bargaining under the NYCCBL. Both effect between the parlies, petitioners proffer, are silent individualized reasonable suspicion related to weapons The Verified Petition seeks an order annulling the BCB to engage in the appropriate balancing grounds that the Decision is arbitrary and capricious, and on the basis that case law relied on by the BCB sequence 00'1). Municipal Respondents'cross-move 7804(f) and 3211(a)(7) for failure to state a claim Respondents BCB and Marlene A. Gold (Gold) petition pursuant to CPLR 7804(f) and for an order 002). Administrative Code of City of New York Page 2 November 19, zo12 (the Practice petition (lpp), broug ht on Octobei Law (NyCCBL) 12-3061 which the New York City Police Deparlment to unilaterally impose a new policy requiring alcohol testing in all cases where police or injury (Verified Petition, fl 2). incorrectly ruled that the NypD policy is and as such held that the alcohol testing bargaining agreements in effect for SBA and testing procedure are mandatory collective bargaining agreements currenfly in on the subject of alcohol testing absent discharge or othen¡vise (id. at fl 14) the Decision, and remanding the case to test to determine the duty to bargain on the inconsistent with prior BCB precedent, is inapplicable to the case (motion to dismiss the petition pursuant to CPLR upon which relief can be granted. as chair thereof move separately to dismiss the affirming the Decision (motion sequence g 12-306 of 6
Municipal Respondents proffer that the reasonable, proper and consistent with the record thoroughly explained therein. ln support of their claim that because the testing involved was for falls neither into the pre-existing classes of random deemed to be related to discipline and thus is a merit. Further, these arguments were similarly City of New York v Patrolmen's Benevolent Assn. As such, BCB and Gold proffer that this Court should rational, not arbitrary or capricious and consistent STANDARD ln the context of an Article 78 proceeding, entitled to intedere in the exercise of discretion rational basis for the exercise, or the action complained Soho Alliance v New York State Liq. Auth., 32 AD3d 363, Pell vBoardof Educ.of UnionFreeschool Dist.No. Westchester County,34 NY2d 222119741; see a/so considered arbitrary if it is "without sound basis in reason to the facts" (Matter of Pell,34 NY2d at 231). "lt its judgment for that of the board or body it reviews and unreasonable and constitutes an abuse of discretion" (Matter of City of N.Y., 93 NY2d 361, 363 [1999] [internal DISCUSSION The question before this Court is the whether Page 3 Decision denying the uni and applicable local law, all of which WAS motion, BCB and Gold proffer that the unions, alcohol and not illegal drugs, and because it or reasonable suspicion testing, it cannot be prohibited subject of bargaining, is without rejected by the Courl of Appeals in Matter of of the City of N.y., lnc, (14 Ny3d 46 [2009]). uphold the Decision finding it to be with applicable law. courts have held that "a reviewing court is not by an administrative agency unless there is no of is arbitrary and capricious" (Matter of 363 [1st Dept 2006], citing Matter of 1of Townsof Scarsdale&Mamaroneck, CPLR 78O3t3l). An agency's decision is and is generally taken without regard is well settled that a court may not substitute unless the decision under review is arbitrary of Arrocha v Board of Educ. quotation marks and citations omitted]), the Decision by the BCB to deny the of 6
Unions' lPP, which challenged the action by the alcohol testing policy in all cases where police personnel discharge death or injury has a rational basis or is arbitrary Department, in an analogous case, recently affirmed reasonable, proper, and lawful for the New York Fire new alcohol and drug testing policy for EMS workers bargaining (see Roberfs y New York City Office Slip Op 07870 [1st Dept 20131). The new policy drug use, and provided that EMS workers who test provide a specimen for a drug test, shall be terminated upholding the Board's determination, the Court discipline of the EMS workers is the sole province al* 2). ln rendering its determination in Roberfs, set forth in Matter of City of New York v Patrolmen's (14 NY3d 46 [2009]). Similarly, the New York City Police Commissioner impose a new policy requiring all police personnel testing in all cases where police personnel discharge without engaging in collective bargaining, in order crimes, and to investigate accusations of malfeasance (see Matter of City of New York, 14 NY3d at 60). authority to determine that the Commissioner's required to engage in collective bargaining before implemented in order to maintain the discipline Page City and the NYPD to impose a new blood a weapon that results in a and capricious. The Appellate Division, First the lower court and held that is Department Commissioner to implement a without subjecting the rule to collective of Collective Bargaining, 2013 NY -AD3d-, imposed a"zero tolerance" policy for illegal positive for illegal drugs, or who refuse to for a first offense (id. at.5). ln found that the City Charter provides that the of the New York City Fire Commissioner (ld, the First Department relied on the precedent Benevolenf Assn. of the City of N.Y., lnc' has full authority to institute and to automatically undergo blood alcohol a weapon that results in injury or death, to maintain discipline, for the investigation of as a matter of public policy and safety The Court finds that the BCB is within its disciplinary authority was proper, and was not instituting alcohol testing policy, as it was and good order of the department (see City of 4 of 6
New York v Patrolmen's Benevolent Association I2OO9J; Matter of Patrotmen's Benevolent Assn. of City Emptoyees Relations Board, '13 AD3d 879 [2006]; Bargaining, _AD3d_, 2013 NY Slip Op 07870 Decision was supporled by the record and was not arbitrary and capricious. determination, the BCB clearly stated the basis for the determination caselaw upon which it relied. As there was a rational and reasonable determlnation, it is entitled to deference by this Couft and will petitioners' application must be denied. ln light of this Court's Municipal Respondents' as well as the motion by BDB as moot. For these reasons and upon the foregoing ORDERED that petitioners' Article 78 petition the New York City Board of Collective Bargaining, costs or disbursements to petitioners' (motion sequence 001); ORDERED that the cross-motion by respondents City Police Department to dismiss the petition pursuant denied as moot (motion sequence 001); it is further, ORDERED that the motion by respondents Bargaining and Marlene A. Gold to dismiss the petition pursuant order affirming the Decision is denied as moot (motion ORDERED that counsel for respondents Depaftment is directed to serve a copy of this Order, Page 5 of 6of the City of New York, lnc., 14 NY3d 46 of N.Y., lnc. v New York State Public. Roberfs v New York Crty Office of Collective [1st Dept 2013]), The Court holds that the ln rendering its and it discussed the basis for the not be overturned. As such, findings, the cross-motion of the and Gold are each respectively denied papers, it is, seeking to annul a Decision and Order of dated November 13,2012 is denied, without it is further, City of New York and the New York to CPLR 7804(f) and 3211(a)(7), is New York City Board of Collective to CPLR 7804(f) and for an sequence 002); and it is further, City of New York and the New York City Police with Notice of Entry, upon all parties and
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.