S::A'.N!"-D~N1l!Sf201:00.- ------------------:1 E c E l v E SUPREME COURT OF THE STATE OF NEW YO !Jt DEC 11 NEW YORK COUNTY 20 12 . Office of Collective BargaiTJi PRESENT: PARTb 2. Justice Index Number: 100946/2012 DETECTIVES' ENDOWMENT INDEX NO.----vs. MOTION DATE ____ CITY OF NEW YORK SEQUENCE NUMBER : 001 MOTION SEQ. NO.OC=·-'_.1 __ ARTICLE 78 The following papers, numbered 1 to _jp_ .w ere read on this motion to/for ---IA--'-'-(2.--~.:.-..:::l'-J_e._l_t _____ Notice of Motion/Order to Show Cause-Affidavits-Exhibits I No(s). / -1. Answering Affidavits-Exhibits---------------I No(s). _..,.!_f ___ Replying Affidavits------------------I No(s). S"-"-!h-nl ti.(.S LUI' I k l I "3 Upon the foregoing papers, It is ordered that this motion is d...Le:....cLu:J ll"\ a CLcvd.u..l(( ~.Gl~lci(\, UJ (.) i= (/) . :: , J . 0 .. . a UJ FILED ~ UJ LL UJ DEC -5 2012 0::: .. >--:j~ NEW YORK ::;) 0 COUNTY CLERK'S OFACE w ~ ~ 0::: ~ t.' U a: J : z S!l~ w ,_J (/) ,_J <( 0 (.) LL z U J J : Q .... .... 0::: 0 0 ::i LL __________ .J.S.C. 1. CHECK ONE:..................................................................... 0 CASE DISPOSED ~ NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0 DENIED 0 GRANTED IN PART 0 OTHER 3. CHECK IF APPROPRIATE: ................................................ 0 SETILE ORDER 0 SUBMIT ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT 0REFERENCE Supreme Court Records Online Library page 1 of 8
.• SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK lAS PART 62 ----·-----------·---·---------··-----------·-------·------------------X DETECTIVES' ENDOWMENT ASSOCIATION, INC. OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Petitioner, For a Judgment pursuant to Article 78 of the CPLR -against-THE CITY OF NEW YORK, THE CITY OF NEW YORK OFFICE 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. --·-----·----------·----------------------·----·-------·----·---------X RECITATION, AS REQUIRED BY CPLR 2219(A), of the papers considered in the review of this Motion/Order for summary judgment. · PAPERS Notice of Petition-Verified Petition· Exhibits ... Notice of Motion -Affirmation-Exhibits Notice of Cross Motion-Affirmation-Exhibits ........ . Memorandum in Opposition ................................... . Amicus Curiae .................................................... .. Affirmation in Support .............................................. . Reply Memorandum in Response to Amicus Curiae ...... __8 _ Memorandum of law............................................ Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: The petitioner Detectives' Endowment Association, Inc. of the Police Department of the City ofNew York (Detectives' Endowment Association) brings this Article 78 Proceeding Supreme Court Records Online Library page 2 of 8 Index No. 100946/2012 DECISION Present: Hon. Geoffrey D. Wright Acting Justice Supreme Court NUMBERED _l __ _2_ 3 --4 --__5 ,6 __ ___7 _ __ _ 9, 10 _ _
for a judgment: annulling a decision and order of the respondent New York City Board of Collective Bargaining (Board of Collective Bargaining), dated December 20, 2011, which denied a request for arbitration of a grievance filed by the Detectives' Endowment Association; and compelling arbitration of the grievance. The respondents Board of Collective Bargaining and Marlene Gold move, pursuant to CPLR 7804 (f) (objection in point of law), for an order dismissing the petition and affinning the Board of Collective Bargaining's decision. The respondents The City ofNew York (City) and The City ofNew York Office of Labor Relations (Office of Labor Relations) cross-move, pursuant to CPLR 7804 (f) (objection in point of law), and 3211 (a) (2) and (7), for an order dismissing the petition on the ground that it fails to state a cause of action. The petitioner Detectives' Endowment Association is a labor organization representing New York City police detectives. The respondents represent management. The dispute involves the proper placement on the salary step schedule of detectives promoted on or after March 31, 2004, but before March 31, 2006. The petition alleges that well after the Detectives' Endowment Association negotiated annual base salaries for 2004, the 2004 salaries for police officers represented by the Police Benevolent Association were raised significantly by an arbitration award. Detectives promoted after March 31, 2004 received a basic entry salary of $60,840, while the basic pay for police officers was raised to $62,269. It is alleged that, as a result, detectives lost money by accepting the promotion. On September 27,2007, the Detectives' Endowment Association and the City executed a side letter re-opener agreement providing: If another uniformed collective bargaining unit has an adjustment made to their 2 Supreme Court Records Online Library-page 3 of 8
salary schedule through the collective bargaining or arbitration process or otherwise during the time period covering April1, 2006 through March 31, 2012 which results in a greater percentage wage increase, then, at the DEA's request, this agreement will be reopened for the purposes of negotiating the effect of that adjustment-through the final steps of the bargaining process. Subsequently, a collective bargaining agreement covering the period 2008 through 2012 was executed which failed to address the 2004 salary discrepancy. The collective bargaining agreement provides at Article XX Sections 1 (a) (I), and (2) (Exhibit 9 to the petition): For the purposes of this Agreement, the term "grievance" shall mean: (1) a claimed violation, misinterpretation or inequitable application ofthe provisions of this Agreement; (2) a claimed violation, misinterpretation or misapplication of the rules, regulations or procedures of the Police Department affecting terms and conditions of employment, provided that, except as otherwise provided in this Section l(a), the term "grievance" shall not include disciplinary matters. The collective bargaining agreement provides at Article XX Section 8: Within 20 (twenty) days following receipt of the Police Commissioner's STEP IV decision, the Union shall have the right to bring grievances unresolved at STEP IV to impartial arbitration pursuant the New York City Collective Bargaining Law and the Consolidated Rules of the New York City Office of Collective Bargaining. The collective bargaining agreement provides at Article XX Section (Exhibit 9 to the petition): In the case of grievances falling within Sections 1( a) (1) or I (a) (2) of this Article, the Arbitrator's decision, and order or award (if any), shall be limited to the application and interpretation of the collective bargaining agreement, rule, regulation, procedure, order or job title specification involved. A step IV grievance filed by the Detectives' Endowment Association challenging the discrepancy in annual base salaries between police ofticers, and detectives who had been promoted after August 1, 2004, but before March 31, 2006, was denied by the Personnel 3 Supreme Court Records Online Library page 4 of 8
Grievance Board, consisting of the Police Commissioner and two deputies. On December 20, 2011, the respondent Board of Collective Bargaining denied a request for arbitration, finding the dispute is not arbitrable because there was "no reasonable relationship between the act complained of in the Detective Endowment Association's grievance and the parties' applicable collective bargaining agreement" (Exhibit 2 to petition, page 19). The petition alleges that the Board of Collective Bargaining's decision is affected by an error of law, and is arbitrary and capricious. In support of their motion and cross motion to dismiss the petition, the respondents inappropriately argue the merits. For example, the arguments raised include the following: the petitioner lacks standing; there was no agreement to arbitrate; there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement; a past practice does not tit the definition of a "grievance"; and the members were paid in accordance with the terms of their collective bargaining agreement. The Court also has before it amicus curiae briefs filed by the Unifonned Fire Officers Association, and the Sergeant's Benevolent Association. It is well settled that judicial review of administrative detenninations is limited to whether the determination was affected by an error oflaw, was arbitrary and capricious, or constituted an abuse of discretion (CPLR 7803; Matter of Langham Mansions, LLC v New York State Div. oflious. & Community Renewal, 76 AD 3d 855, 857 [l ' 1 Dept 201 0]). An action is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts" (Matter ofP el! v Board ofE duc. of Union Free School Dist. No. 1 ofTo wns ofS carsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Where a rational basis exists for 4 Supreme Court Records Online Library page 5 of 8
an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference (Matter ofTockwollen Assoc., LLC v New York State Div. ofH ous. & Community Renewal, 7 AD 3d 453, 454 [1st Dept 2004]). However, where, as here,"objections in point of law" are raised by motion (CPLR 7804 [f]), the court must judge the legal sufficiency solely on the face of the petition's allegations, and any factual issues are beyond the scope of the motion (Matter ofG arcia v Rhea, 85 AD3d 549 (I st Dept 20 II]). Therefore, a proper motion to dismiss an Article 78 proceeding must be based solely on a point of law, and may not dispute any of the facts alleged by the petitioner (Matter of 108 Realty LLC v Department ofH ous. Preserv. & Dev. of the City of N Y, 83 AD 3d 556, 557 [I st Dept 201 I]). Judging the petition solely on its face, deeming the allegations true, and according the petitioner the benefit of every possible inference, I find that the petition states a claim (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511 [2012]). Contrary to the respondents' assertion, courts may look to the past practice of the parties to give definition and meaning to language in a collective bargaining agreement. Moreover, as a legal matter, a public employer is statutorily obligated to negotiate in good faith, and where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the employer is barred from discontinuing that practice without prior negotiation (Matter ofA eneas McDonald Police Benevolent Assn. v City ofG eneva, 92 NY2d 326 (1998]). Ultimately, this Court would rather have the arbitrator determine the exact scope of the substantive provisions of the collective bargaining agreement. However, it is enough at this 5 Supreme Court Records Online Library page 6 of 8
. .• point to state that there may be a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement (Matter ofB oard of Educ. qfWatertown City School Dist. v Watertown Educ. Assn., 93 NY2d 132 [1999J). Among the issues of fact presented on these papers are: the effect of subsequent collective bargaining agreements on the petitioner's claim; which collective bargaining agreement and side letters the petitioner is proceeding under; whether the respondents violated any pay plan; was there an established past practice on the part of the parties; whether a reasonable relationship exists between the collective bargaining agreement and the grievance; whether the arbitrator's authority extends to the instant dispute; whether the parties expressly agreed to arbitrate the instant dispute; and whether it is for the arbitrator to determine whether or not the aforementioned reasonable relationship exists. To the extent that Matter ofS ergeants Benevolent Assn. oft he City ofN .Y. v City of New York (2011 NY Slip Op 32022U, 2011 WL 3022203,2011 NY Mise LEXIS 3614 [Sup CtNY County July 18, 2011 J, Exhibit "C" to Board of Collective Bargaining's motion) is inconsistent with this decision, the court respectfully disagrees with it. Moreover, emanating as it does from a court of coordinate jurisdiction, the legal holding is not binding on this Court. Therefore, the motion and cross motion to dismiss the petition, on the ground of an objection in point of law, must be denied. This Court having denied the pre-answer motion to dismiss, it must allow the responde~ts an opportunity to submit an answer (CPLR 7804 (f]; Matter of Bethelite Community Church. Great Tomorrows Elementary School v Department of Envtl. Protection ofC ity ofN .Y., 8 NY3d I 00 I, 1002 (2007]). For a proper adjudication of the rights of the parties, pleadings and a 6 Supreme Court Records Online Library page 7 of 8
,------------------------·· --·-··-.... . 1 • . ' distinct issue are essential. Therefore, no disposition on the petition may be made until after the answer is served (Matter ofC amacho v Kelly, 57 AD3d 297,298 [1st Dept 2008]). Accordingly, it is ORDERED that the motion and cross motion are denied; and it is further ORDERED that the respondents serve and file their answers within five days of service upon them of a copy of this order with notice of entry and the petitioner may re-notice the matter for hearing upon service of the answer upon seven days' notice. Dated: November 20, 2012 Supreme Court Records Onlme Library page 8 of 8 ~ GEOFFREY D. WRIGHT AJSC JUDGE GEOFFREY D. WRIGHT Acting Justice of the Supreme Court Fl LED DEC -5 20lt NEW YORK COUNTf CL£RK'S OFFICE 7
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DETECTIVES' ENDOWMENT ASSOCIATION, lndexNo.100946/2012 INC. OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules NOTICE OF ENTRY -against-THE CITY OF NEW YORK, THE CITY OF NEW YORK OFFICE OF LABOR RELATIONS, THE RECE NEW YORK CITY BOARD OF COLLECTIVE BARGAINING, and MARLENE GOLD, as Chair DEC 11,2012 of the New York City Board of Collective Bargaining, Bargaining Respondents. PLEASE TAKE NOTICE, that the within is a true copy of an Order duly entered in the office of the clerk of the within named court on the 5th day of December, 2012. Dated: New York, New York December 10, 2012 To: John Schowengerdt John Wirenius Office of Corporation Counsel Board of Collective Bargaining l 00 Church Street, Room 2-183 40 Rector Street, 7th Floor New York, New York 10007-260 New York, New York 10006 Attorneyfor Respondents the City of Attorney for Re5pondents, Board of New York, et al. Collective Bargaining, et al. (()054fl717DOC/}
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