FILED: NEW YORK COUNTY CLERK 03/29/2019 04:10 PM NYSCEF DOC. NO. 27
INDEX NO. 156046/2018 RECEIVED NYSCEF: 03/29/2019
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT:
HON .. CAROL R. EDMEAD J .S. CJpstice
Lo.w €r J.MC w,J,,\.J-
0$0- J
lf1YJpl"o"".s
·V· C~~tvhk
PART,3{
")
MOTION DATE C> ~ MOTION SEQ. NO. 00 3
The following papers, numbered 1 to __ , were read on this motion to/for ______________ Notice of Motion/Order to Show Cause - Affidavits - Exhibits I No(s) .. ______ Answering Affidavits - Exhibits __________________ I No(s). ______ Replying Affidavits ______________________ I No(s). ______ Upon the foregoing papers, it is ordered that this motion is
w () 1= Cl) : -:> , 0 I-C w 0:: 0:: w u. w 0::
~ en ..J z ::> u. 0 en I- <( () w w C. a:: Cl) (!) w z 0:: ~ ~ 0 w ..J Cl) ..J <( 0 (.) u.. z w 0 :c: I-1= 0 a:: :1: 0 u. .
Motion sequence 003 is decided in accordance with the annexed Memorandum Decision. It is hereby
ORDERED that the motion, Pursuant to CPLR 2221, of the petitioner Law Enforcement Employees Benevolent Association (motion sequence number 003) is, in all respects, denied. And it is further
ORDERED that counsel for Petitioner shall serve a copy of this Order with notice of entry within twenty (20) days of entry on counsel for respondent.
~A ~ .J. . HeN.CAROLR.EDMEAD
J.S.C.
1. CHECK ONE: ..................................................................... ~SE DISPOSED □ NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED n DENIED 0 GRANTED IN PART □ OTHER 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0 SUBMIT ORDER Ooo NOT POST 0 FIDUCIARY APPOINTMENT 1 of 5
O REFERENCE
FILED: NEW YORK COUNTY CLERK 03/29/2019 04:10 PM NYSCEF DOC. NO. 27
INDEX NO. 156046/2018 RECEIVED NYSCEF: 03/29/2019
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 35 ---------------------------------------------------------------------X In the Matter of the Application of
LAW ENFORCEMENT EMPLOYEES BENEVOLENT ASSOCIATION, Petitioner,
For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
Index No.: 156046/18 DECISION/ORDER
-against-THE CITY OF NEW YORK OFFICE OF COLLECTIVE BARGAINING - BOARD OF CERTIFICATION,
Respondent. ---------------------------------------------------------------------X HON. CAROL RED MEAD, J.S.C.:
In this Article 78 proceeding, the petitioner Law Enforcement Employees Benevolent
Association (LEEBA) moves for leave to reargue its opposition to the earlier dismissal motion of the
respondent City of New York Office of Collective Bargaining - Board of Certification (OCB; motion
sequence number 002), which the court granted in a decision dated November 19, 2018 (motion
sequence number 003). For the following reasons, this current motion is denied.
BACKGROUND The court discussed the facts of this case in its November 19, 2018 decision, and need not
repeat them here. It is sufficient to note that LEEBA's motion raises two objections to the court's
previous decision: 1) that the court "erred in ruling that Local 23 7 [i.e., Local 23 7, International
Brotherhood of Teamsters] and the City of New York [the City] are necessary parties"; and 2) that
2 of 5
FILED: NEW YORK COUNTY CLERK 03/29/2019 04:10 PM NYSCEF DOC. NO. 27
INDEX NO. 156046/2018 RECEIVED NYSCEF: 03/29/2019
"the court erred in awarding costs and disbursements to (OCB]." DISCUSSION Before reachirtg LEEBA' s arguments, however, the court notes that CPLR 2221 ( d) (2) requires that "[a] motion for leave to reargue ... shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Such a motion may be granted only upon a showing '"that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision."' William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (1 st Dept 1992), quoting Schneider v Solowey, 141 AD2d 813 (2d Dept 1988). As the Appellate Division, First Department, has observed, "a motion for leave to reargue 'is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented."' Matter ofA nthony J Carter, DDS, P. C. v Carter, 81 AD3d 819, 820 (I51 Dept 2011), quoting McGill v Goldman, 261 AD2d 593,594 (2d Dept 1999). Here, LEEBA first asserts that the court's November 19, 2018 decision misapplied the Appellate Division, First Department, holding in Mahinda v Board of Collective Bargaining (91 AD3d 564 ( I51 Dept 2012]). See petitioner's memorandum of law, at 9-12. LEEBA specifically
I contends that the court erred: I) in failing to distinguish Mahinda on the facts because it "was not a fragmentation case"; and 2) in finding that the now-dismissed respondents, Local 237 and the City, were "necessary parties" to this proceeding, because OCB' s interests "align directly" with theirs. Id. OCB's response notes that LEEBA "merely copied its arguments regarding Mahinda 's applicability
2
3 of 5
FILED: NEW YORK COUNTY CLERK 03/29/2019 04:10 PM NYSCEF DOC. NO. 27
INDEX NO. 156046/2018 RECEIVED NYSCEF: 03/29/2019
verbatim from its opp. memo" to the original motion. After reviewing the case file, the court notes that
OCB's contention is correct. See petitioner's memorandum oflaw (motion sequence number 003), at
9-12; petitioner's memorandum oflaw in opposition (motion sequence number 002), at 14-16. Thus,
LEEBA's arguments in LEEBA's current motion represent an improper attempt to take "successive
opportunities to reargue issues previously decided," in violation of CPLR 2221. Therefore, the court
rejects LEEBA's first argument in its current motion (and reiterates its findings with respect to motion
sequence number 002). LEEBA next asserts that the court violated CPLR 7806 by awarding OCB costs and
disbursements as part of its decision on motion sequence number 002. See petitioner's memorandum
of law, at 12. OCB responds that this argument is "not properly before the court on a motion to ...
reargue as these issues were never previously addressed." See Baker affirmation in opposition, 129.
OCB also contends that LEEBA's current motion is "frivolous" and, thus, sanctionable. Id. LEEBA's
reply papers vehemently deny this contention. See petitioner's reply memorandum, at 5. The court
finds that all of these argument miss the mark. LEEBA is incorrect to invoke CPLR 7806 because the
court awarded OCB costs pursuant to CPLR 8101 as the "prevailing party" on motion sequence
number 002. That statute entitles a prevailing party to an award of costs "unless otherwise provided by
statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances." LEEBA has not identified any such limiting statute, nor has it argued that the costs
award was inequitable. OCB is also incorrect to argue that LEEBA failed to address the costs issue in
its last motion. It plainly could not have, since the court did not award costs until after it had decided
the motion. OCB filed to support its contention regarding "sanctionable frivolity" with anything but
3
4 of 5
FILED: NEW YORK COUNTY CLERK 03/29/2019 04:10 PM NYSCEF DOC. NO. 27
INDEX NO. 156046/2018 RECEIVED NYSCEF: 03/29/2019
conclusory, self-serving statements. Therefore, the court rejects LEEBA's second argument in this
motion, and OCB's opposition. Accordingly, the court finds that LEEBA's motion to reargue should
be denied.
DECISION
ACCORDINGLY, for the foregoing reasons, it is hereby ORDERED that the motion, pursuant to CPLR 2221, of the petitioner Law Enforcement
Employees Benevolent Association (motion sequence number 003) is, in all respects, denied. And it is
further
ORDERED that counsel for Petitioner shall serve a copy of this Order with notice of entry
within twenty (20) days of entry on counsel for respondent
Dated: New York, New York March 27, 2019
ENTER: u£gL(? Hon. Carol R. Edmead, J.S.C HON.CAROLR.EDMEAD J.S.C.
4
5 of 5