SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

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In the Matter of the Application of

JAMES R. DAVIS III" as President of the New York City Deputy Sheriffs' Association, Supervising Deputy Sheriffs: Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos, Courtney Skinner, Maria Devlin. Herman Williams, JR., Deidre Robinson, Steven Brown,

Petitioners,

For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,

-against-

The City of New York; New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of the City of New York Department of Finance,

Respondents.

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AFFIRMATION OF WILLIAM S.J. FRAENKEL IN OPPOSITION TO PETITIONERS' MOTION FOR INJUNCTIVE RELIEF AND IN SUPPORT OF RESPONDENTS' CROSS-MOTION

TO DISMISS

Index No.:

WILLIAM S. J. FRAENKEL, an attorney duly admitted to practice before the

Courts of the State of New York, affirms pursuant to Rule 2106 of the Civil Practice Law and

Rules, and under penalty of perjury that the following is true and correct:

1. I am an Assistant Corporation Counsel in the office of Michael A.

Cardozo, Corporation Counsel of the City of New York, attorney for Respondents in the above-

captioned proceeding. I make this affirmation upon information and belief based on the books

and records of the City of New York ("City" or "City Respondents") and conversations with

employees of the City. I make this affirmation in opposition to the motion for a temporary

•

restraining order and preliminary injunction and in support of Respondents' Cross-Motion to

Dismiss.

A. In that the Dispute is Nonjusticiable, the Petition Must be Dismissed

2. It cannot be disputed that, in the interest of economy, a public employer

may abolish positions occupied by permanently appointed persons. Aldazabal v. Carey, 44

N. Y.2d 787 (1978); Saur v. Director of Creedmoor Psychiatric Center, 41 N. Y.2d 1023 (1977);

Wipfler v. Klebes, 284 N. Y. 248, 254-5 (1940); Piekienlniak v. Axelrod, 92 A.D.2d 968 (3d

Dept. 1982) appeal denied, 59 N. Y.2d 603 (1983). Here, the City is exercising its right to

eliminate three positions in the supervisory title of Supervising Deputy Sheriff, Level I, Pursuant

to Civil Service Law §80(6), persons in the eliminated positions will be returning to the next

lower occupied title in direct line of promotion. Nine other individuals in the Deputy Sheriff title

will be laid-off

3. In that the City has the right to abolish positions for economic reasons,

Petitioners are barred from prosecuting this proceeding because the Petitioners' disagreement

with the City's fiscal policy is nonjusticiable. The Court of Appeals held that claims which

require the judiciary to undertake tasks that are committed to other branches of government are

not justiciable. Klosterman v. Cuomo, 61 N. Y.2d 525, 535-36 (1984). The Klosterman Court

explained that:

Acquiring data and applying expert advice to formulate broad programs cannot economically be done by the courts. This restraint is particularly important when the creation of a program entails selecting among competing and equally meritorious approaches as to allocate scarce resources. Generally, the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the legislative and executive branches of our tripartite system.

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hi at 535-36; New York State Law En£. Employees y, Cuomo, 64 N.Y.2d 233, 239, 485 N.y'S.2d 719, 722 (l984)("questions of judgment, allocation of resources and ordering of priorities ... are generally not subject to judicial review."); Jones v, Beame, 45 N.Y.2d 402, 408- 409, 408 N, Y.S,2d 449,452 (1978)("[T]he court as a policy matter, even apart from principles of subject matter jurisdiction, will abstain from venturing into areas if it is ill-equipped to undertake the responsibility and other branches of government are far more suited to the task."). Thus, courts will not interfere with the exercise of executive discretion and will not review the wisdom of the government's policy.

4. In applying the doctrine of justiciability the Courts have repeatedly held

that they will not become embroiled in the management and operation of City departments. Mancuso v. Koch, 156 AD,2d 209 (l st Dept. 1989). This is the law even when the City takes actions affecting public safety positions. McKechnie v. New York City Transit Police Departmen!-, 130 AD. 2d 466 (2d Dept. 1987)(application for injunction restraining transit police department from deploying transit police officers at certain facilities until allegedly hazardous conditions were abated denied because it would embroil the judiciary in the management and the operation of the city transit system.); Pedalino v. Giuliani, 165 Mise, 2d 324 (Richmond Co. 1995)(staffing of FDNY dispatchers was within the exclusive control of the Fire Commissioner.) See also Jones y. Beame, 45 N.Y.2d 402, 408-09, (1978). And see Richmond Hills Block Association v. Dinkins, 149 Misc.2d 654 (Queens Co. 1991)(closing of a firehouse is nonjusticiable issue).

5. A request similar to that now before the Court was made at the start of the

decade by the firefighters union which sought an injunction enjoining the City from proceeding

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with a planned work-force reduction. In that litigation the court found that Petitioners'

application must be denied based on the separation of powers doctrine. The court wrote that:

aside from the aforesaid barriers, the pattern of government in the State of New York includes the separation of the executive, legislative and judicial powers, and requires that each branch of government should be free from interference in the lawful discharge of duties by the other branches. See Matter of New York State Inspection, Security and Law Enforcement Employees, District Counsel 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233 (1984); Mancuso v. Koch, 156 A.D.2d 209 (lst Dep't 1989). By seeking to vindicate their legally protected interest in a safe workplace, petitioners called for a remedy which would have embroiled the judiciary in the management ana operation of the Fire Department of the City of New York. See Matter of New York State Inspection, Security and Law Enforcement Employees, District Counsel 82, AFSCME, AFL-CIO v. Cuomo, supra at 239. Such a result would have been contrary to the principle that the management and operation of municipal government, which require decisions regarding the quality and quantity of municipal services, should not be preempted by the judiciary, but should be left in the control of duly elected officials. See In the Matter of Richmond Hill Block Association, Inc. v. David N. Dinkins, as Mayor of the City of New York, 149 Misc.2d 654. 656 (Sup. Ct. Queens County 1991).

See Cassidy v. Scoppetta, Index Number 52036/02, (Sup, Ct. Kings County, February 6,

2003)(Starkey, 1.), Slip Op. at 5 annexed hereto as Exhibit 1. This reflects the Court of Appeals

dictate that:

The interference of the Supreme Court with the details of municipal administration is not to be encouraged. These details are intrusted by the people to officers chosen directly or indirectly by themselves. These officers are criminally responsible for a willful neglect of their duties, and upon them the responsibility for the government of our cities should usually be allowed to rest.

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The Supreme Court is not so organized as to enable it conveniently to assume a general supervisory power over their acts; and indeed such an assumption by it would be contrary to the whole spirit and intent of our government.

Jones, 45 N.Y.2d at 408-09 (Quoting People ex reI. Clapp v Listman, 40 Mise 372, 375-376 (N.Y. Co.) atI'd. on QP. below 84 A.D. 633 (4th Dep't 1903».

6. In the case at bar, the Court should not yield to Petitioners' request that the

Court usurp the function of the executive branch of government to operate the Department of

Finance. This Court is being asked to embroil itself in a dispute regarding the allocation of scare

resources. Decisions on such matters are entrusted to the Executive branch and are

nonjusticiable. Therefore, the petition must be dismissed.

B. Petitioners are Dot entitled to injunctive relief under CPLR Article 63.

7. To obtain the extraordinary remedy of a preliminary injunction, under

Article 63 of the CPLR, petitioners bear the burden of showing that they have satisfied each of

the following prerequisites: (I) a clear right to the relief sought (also articulated as a likelihood

of success on the merits); (2) that they will suffer irreparable injury if the preliminary injunction

is not granted; and (3) that the balance of the equities tip in their favor. W.T. Grant v. Srogi, 52

N.Y.2d 496, 438 N.Y.S.2d 761 (1981); Cohen v. State Department of Social Services, 37 AD.2d

626,323 N.Y.S.2d 603 (2d Dep't 1971), affd, 30 N.Y.2d 571, 330 N.Y.S.2d 789 (1972).

8. Applications for preliminary injunctive relief are addressed to the sound

discretion of the court, see CPLR § 6301, but such relief is a drastic remedy which should not be

granted unless a clear legal right to it is established under law. Orange County v. Lockey, III

A.D.2d 896, 897 (2d Dep't 1985). See also Graham v. Wisenbum, 39 A.D.2d 334, 335 (3d

Dep't 1972) (preliminary injunction may not be granted unless a party has stated a prima facie

cause of action which would justify a permanent injunction); Rodgers v. Rodgers, 30 AO.2d

548,549 (2d Dcp't) (same), ~ denied, 22 N,Y,2d 643 (1968); Board of Fire Commissioners v,

Windmill Fann Water-WQrks Corn" 225 N,Y.S.2d 801 (Sup. Ct. Westchester Co. 1962) (same),

Petitioners have failed to meet the three prerequisites for a preliminary injunction, and thus their

motion should be denied.

i) Petitioners Cannot Demonstrate Likelihood of Success on the Merits

9. Petitioners assert that the decision to eliminate positions is irrational.

Although petitions incant the necessary elements for an Article 78 proceeding, their core

assertion is that Petitioners have a better idea of how to run the Department Finance. Such

assertions however are insufficient to prevail.

10, It is essential to keep in mind the basic role of the courts in reviewing the

acts of governmental agencies, As stated in Matter of Sullivan County Harness Racing Assn. v.

Glassner, 30 N.Y.2d 268,277,332 N.Y.S.2d 622 (1972):

Cases are legion which illustrate the principle that our review ends when a rational basis is found for the agency determination ... The judicial function is exhausted when there is to be found a rational basis for the conclusions approved by the administrative body.

See also Greenwald v, Schechter, 188 N.Y.S.2d 751,17 Misc.2d 611 (Sup. Ct. N.Y. Co. 1959).

11. For Respondents' actions to past muster under the Article 78 standard, the

Respondents' actions need only be rational - not optimal. It is recognition of the maxim that the

perfect should not be the enemy of the good. Indeed, were the Court to examine government

action not on the basis of "is it rational" but "is it the best," the judicial branch would constantly

intrude on the obligations and responsibilities of the executive and legislative branches. Here the

City's actions are rational and thus the inquiry ends.

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12, The current economic crisis places the City in a difficult position, The

City is required to reduce costs and some reductions must come from eliminating employment positions, It is undisputable that City's decision to eliminate Deputy Sheriffs positions will save money. Although this action is unpleasant and undesired, it is necessary and rational, Petitioners have not made a prima facie showing, let alone demonstrated, that the City's decision is irrational. Even after the reductions, the City will continue to operate a Sheriff's Office. Even after the reductions, the City will continue to operate a police force of over 30,000 officers. Petitioners have not shown how the reductions in the Sheriff's Office will impact public safety, let alone demonstrated that public safety would be impacted to such a degree to make the decision irrational. Petitioners' assertions that public safety is implicated arc bald, unsupported and must be disregarded,

13, Nor is it irrational to use during layoffs social security numbers to select

between candidates with the same amount of seniority. Indeed, during the hiring process the same method is used to chose between candidates with the same test scores. This procedure, using social security numbers to break ties, has been upheld by the First Department. See Napoli v. Levitt, 176 AD,2d 668 (lst Ocp't 1991), appeal denied, 79 N.Y.2d 753 (1992). Because Petitioners cannot show the City'S decision is irrational, Petitioners will not prevail on the merits.

14. Petitioners assert that, compared to other City positions, too many of their

positions are being eliminated, Petitioners implicitly assert that the cuts should be made elsewhere, but do not say where. Petitioners claim that public safety will be effected but do not say how. As explained above, difficult decisions concerning which positions to eliminate and how to serve the citizens of the City are entrusted to the City's executive branch and not the

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Petitioners nor this Court. This matter is nonjusticiable, Because the matter is nonjusticiable, Petitioners will not prevail on the merits.

ii) Petitioners Cannot Show Irreparable Harm

l5. A party seeking preliminary restraint must prove irreparable harm to be

imminent, not remote or speculative. Golden v. Stearn Heat, 216 A.D.2d 440 (2d Dept. 1995), And see Pedalino v. Giuliani, 165 Misc. 2d 324 (Richmond Co. 1995)(finding that the alleged harm in the Fire Commissioner reducing the number of dispatchers in the borough offices was too speculative.) For purposes of a preliminary injunction, "irreparable" harm is "a continuing harm resulting in substantial prejudice by the acts sought restrained if permitted to continue pendente lite." Chrysler Corp. v. Fedders Corp., 63 A.D.2d 567. 569, 404 N.Y.S.2d 844 (1st Dep't 1978).

16. Here the alleged irreparable harm to public safety is unsupported by any

evidence. This alleged irreparable harm is nothing if not speculative and remote. Petitioners assert that public safely will be impaired but neither detail this aJleged harm nor put forward any evidence to support the claim. Even after the proposed reductions the City will continue to operate a Sheriffs Office and a police department of over 30,000 officers. Public safety will not be harmed by the reductions. Petitioners' unsupported safety claim should be rejected.

17. The potential impact on those being demoted and laid-off also does not

constitute irreparable harm. It is well established that even loss of employment, although likely to cause hardship, does not constitute irreparable damage for purposes of a preliminary injunction. Cohen v. Dep't of Social Services, 30 N. Y.2d 571, 572 (1972); Suffolk County Ass'n of Municipal Employees, Inc. v. County of Suffolk, 163 A.D.2d 469, 470 (2d Oep't 1990); Armitage v. Carey, 49 A.O.2d 496, 498, 375 N.Y.S.2d 898, 900 (3d Dept. 1975); De Lury v. City of New York, 48 A.D.2d 595, 378 N.Y.S.2d 49 (1 st Dept. 1975). Thus, petitioners' have

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not, and cannot, demonstrate irreparable damage and are therefore not entitled to a temporary or a preliminary injunction.

18. In De Lury, the First Department reversed the trial court's granting of a

preliminary injunction enjoining and restraining the defendants from laying off sanitation workers. Regarding the issue of irreparable harm, the court stated: "We also believe that [plaintiffs] have failed to demonstrate irreparable damage to them by a denial of this remedy because we find that, if. at the trial of the issues, the plaintiffs shall have succeeded in holding the defendants liable for breach of the contract, they can be fully compensated by the payment of back salaries and a restoration of their old positions as of the date of the illegal discharge." DeLury, 48 A.D.2d at 603.

19. Similarly, in Cohen, plaintiffs, permanent competitive employees at a

special State facility for juvenile delinquents, sought to enjoin defendants, the Department of Social Services, officials thereat: and the Department of Civil Service, from, inter alia, laying off employees on said staff from their positions at the special facility. The Court of Appeals affirmed the Appellate Division's decision to deny the motion for a preliminary injunction, agreeing with the Appellate Division that plaintiffs had not made out a clear right to the relief demanded; that, in view of the fact that, as conceded by the State, they would be entitled to reinstatement and back pay if they ultimately prevailed, and they had not demonstrated that they would be irreparably harmed in the event the preliminary injunction was not granted. Cohen, 30 N.Y.2d at 572.

iii) Balance of the Equities Tips Towards Respondents

20. A petitioner seeking a preliminary injunction must also demonstrate that

the balance of the equities tips in his favor. Here the balance of the equities tips decidedly towards the Respondents. The issue in this case is the difficult decision as to how to best ~ 9 -

allocate scarce municipal resources, Petitioners cannot deny that these are difficult financial times, The City like the rest of the nation is suffering, Petitioners' safety claims, if not fallacious, are speculative, Protecting the public fisc, and the principles of separation of powers. which allocates these difficult decisions to the executive branch, outweighs the Petitioners' interests, The equities tips towards Respondents and the public,

C. If an injunction is granted petitioners should be required to provide an undertaking

21, Civil Practice Laws and Rules section 6312(b) stipulates that a plaintiff,

other than the state or a state agent, "shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction," Similarly, Section 6313(c) allows for payment of an undertaking prior to issuance of a temporary restraining order.)

22, It has been held that CPLR § 6312(b) "clearly and unequivocally requires

the party seeking an injunction to give an undertaking" Griffin v, 70 Portman Rd, Realty, Inc., 850 N.y'S,2d 603, 604 (2d Dep't 2008). The failure by the trial court require an undertaking can result in the injunction being held defective and the matter remanded for determining an undertaking, Trump Plaza Owners. Inc, v. Weitmer, 849 N,Y.S.2d 554 (lst Dep't 2008), See also Schwartz v, Gruber, 690 N.Y.S.2d 641, 642 (2d Dep't 1999) (finding that the lower court "erred to the extent that it granted the plaintiffs' request for a preliminary injunction without requiring them to give an undertaking"),

23. Should this Court for any reason choose to issue an injunction, this Court

should require petitioners to make an undertaking to compensate the City and its taxpayers for the costs incurred by the City's inability to implement the demotions and layoffs. See Cassidy y,

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Scoppetta, Index Number 2003-00149, (2d Dept., May 2, 2003) Slip OQ. annexed hereto as

Exhibit 2.

24. Upon information and belief, based on the document attached hereto as

Exhibit 3, and based on conversations with Department of Finance employees, if the City is not

permitted to implement the demotions and layoffs, the daily cost to the City will be $4,045.00. If

petitioners are granted an injunction they should be required to make an undertaking in an

amount to compensate the City for the daily expense of $4,045.00, until the entry of a final order

disposing of any related grievance, arbitration or appeal.

CONCLUSION

F or the foregoing reasons, respondents respectfully request that the Petitioners'

motion for a temporary restraining order and a preliminary injunction be denied, that the

Respondents Cross-motion to dismiss be granted and the petition be dismissed in its entirety, the

relief requested be denied in all respects, and that respondents be granted costs, fees, and

disbursements together with such other and further relief as this Court deems just and proper.

Dated:

New York, New York January 20. 2011

William S.J. Fraenkel

Assistant Corporation Counsel Office of the Corporation Counsel of the City of New York Attorney for Respondents

100 Church Street, Room 2-105 New York, N.Y. 10007

(212) 788-1247

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EXHIBIT 1

, ,

t

SUPREMI COURT STAT! OF NEW YORK COUNTY OF KINGS. CML TERM PART 11 HOM.' JAMIS O. STARKEY

------------------------------------x

STIPHEN J. CASSIDY. IndMduatly ... I New YOfft CItJ FlteftghtIr. and .. P, .. kIent,oI the UnlfCJfJIIM ~ A.aooWloft of 0,..., New yon.lCtIng Oft behaI of .. P'I,efIghUft ... IgMd to ftv ........ !nQIM CompantM wtthln .... ,IN ~ 01 the City of New yOftt, and th4t UNifORMeD flftEPIGfn'!RI AIIOCfATIOH or GRlATP NaW YOMt

Index No.: 5203t102

PetItionerI,

Oatedl F.bruaty 't 200J

..........

NICHOLAI SCOPPETTA, .. C~1oner of 1M

Fin OtplltlMnt of tIM City 01 New YOlk. THI! NEW YOfIU< CITY Plg DEPARTUeHT. and THI CITY Oft NEW YOftK.

R .. pondentL

---------------------- ..... ------------.

APP!AAANCaS OJI COUNUL

FOt the PttttJoMra:

Su ..... Papalft., Bloc*. McGrwdt &. C.nnevo. P.C. 120 8t'oedW1Iy

New Yot'tl. NY 10271

By: RcbMt G. SUHlvant eaq. a. MIchael H. Block. &q.

c.rtJlmaft. SIIIn, '~ler a. Hynw': !...!.P 80 MentoIlAv ......

Ealt Me.-w. NY 115M

By: MIt ..... c. Axdod. Eaq.

For the R"p0ndent8:

MIchHt A. cardozo. I!aq.

CorporatIOn eou .... of .... City of ..... YOtte 100 Churctt S"",, Room 2·114

NeW yorlt. NY 10007

By: Donna KHbohm, Eaq. II WiIILIm J. Fnnk", Eaq.

"

CaN'" v. ScopptHI lada No. :52036101

On December J 0, 2002, petitioners, Stephen J. Caufdy, u • New York Chy FJreflahter and u Prelident oftbt Uniformtd Flrefiahtm Aaoct.tJoft olOrma' New York, acUnl OD behalf of 111 Finfighten assiped to five·man EnaJne Companjes withJn the Fire Deputmmt of .he elry otNew York, and tho Uniformed Flreftabter" Association. moved by order to sbow caw. pursuant to CPU §7502(c) a:od Miel, 71 of the CPLR fori preliminary injUDCtioo

a lain" Nicholu Scoppetta u Commissioner of tht Fire Department of the City of New Y ~ the New York City Fire Department and the City of New York.. Petitioners moved to enjoin and restrain tilt Fire [)epartmeD' of the City ofNt!IW York from removina the fifth Fircflahter a.ssi811ed to 49 flve-man EnaJ". CompuUo. pcndina resolution of. pie'VUlC' previously flied by petitioner aaainst respondentJ for the wne relief on the same or similu sroundt.

RespondentJ c:rou moved for an order and judlJ1'Mn1 dismb.ina lb. petition pursuant to CPLR §1804 (f) and CPLR §3211 on poundJ tba1 petitioners had waived aU risht to Utiple thls matter, that the court lacked subject maner jurisdiction over the petition, that the petition was non.justic:iable and that the petition failed to state a cause of action.

On December JOt 2002 the motion of petitioners for I preliminary injunc1ion WU dcniec:t and the crou motion to dismiss wu grtDted. The basil for those ruJinSI iS1e1: forth beJow.

CONTENTIONS AND PRIOR PROCEEDINGS

Petidonm clainwd that eliminatioD of the fifth tlnfighter from a significant nwnber of engine companies assigned to 11gb. fim in the City of New York would UIU'eaSOnabJyand excessively endanaer other firefighters assigned to those engine ccmpanies 11111 well as the genenl

public,'

From J 989 through ] 996 tltt claim by the Uniformed Firefighter', Assooiation that

removal of the fifth fireflghter ftom an enaine company would present an unreuonable risk to

the rcrn&in.ing four llreflahtm WI! the subject of I number ofproceedinill and decisiont by the omu o( CoUecttve Bargaininl and the .Board of CoUeetivc Bargainint of the City of New York.l The findinp and rulings of the Board of Collective Sarpinina dW'ina thi. period were

generally adverse to the cllima o{the Uniformed Finflahter'l Aaoe:iation i.a thiI "gild.

On January 30, J 996. to resolve the Issue of whether or not • fifth firefighter should be llSJisned to the engine companies which are the subjec1 ofthit applJcation, the City of New York, the New York CJty Fire DepMtment and Uniformed Flrefighter's Association entered into a stipulation in settlement of one such proc:eedinr which became known u the Roster Staffing Agreement. The Roster Sta.fJjng Agreement pemUli the City to reduce engine compaD)' assisnmentJ from five to four fuefiQhters in the event "fudlghter medical leave for. 72 hour period retd1etI Nt average absence rate of9.2S% for that period, or if the firefighter medical

IOn December 26. 2oo2i during oral argument before this c~ petitionen' counsel also argued that the City of New York intentionally or recklessly created the present level o(medical leave within the New York City Fire- Department by liiJinl to provide the necessary and proper equipment to firefighters enasaed in the clea,n.up oltho World Trade Center site and by refusina to accept or process fU'efighter applications for disability retirement. thereby aniflcially inllatJng the number oftireftahtm OD medical leave. Since these argumenU were not raised in petitioners movina papers they were not considered by the court in renderio8 its deeisioft and order. Even if they bad been consi~ however, the decision would not have been affected for the rusons set forth herein.

1 See U,F.A. y, City. BCB decision No. B-4-89; U.FA, y, Citt. BCD decision No. B~7()" 89; UfA v, CjUt. BCB deeiaien No. B-39-9O; UFA v. City. BCD decision No. 8-49-91.

YJ'he PfOCeedins bad been docketed in the Office of Collective Bargaining 81 BCD. t 295-

90.

2

Itav. reICho an .baene. rate of 1 O.~ or grutIf {or a 24 hour period . , . It

The RoI1lt Staftthl Aarecnem of Januuy 30. J 996, also contains a waiver by J*itioners of the rlaht to IIda.' the issue. raJsed in tbesCI proceedlnp..

There ,s no real dispute that subsequent to the atrOCity of September II, 200 1 (in which almost 3,000 Uvet were lost, 343 o(whom were N~ York City Flreflghters) and the tJeano.up of

the World Trade Center site - which involved a large number of fireflgbten - the rite of rrreflpter medicalleav. in 2002 reached I threshold at which the Roiter staffina Aareemcnt pennitted the City to nab the dlsputed reductions. After thos. clrcwnst.enca came about. by , lener dlted December 2.2002, the New York City Flte Dtpanment notified pethionen, Stephen Cassidy (u President of tho Unifonned Flnflghter's AssociatJon) and the Uniformed Fireflahter's Association. that etTectlvt January 2. 2003, the fifth Firefighter would be removed

from 53 enKint companies as pan of maudated budaet reductioDl. A second letter, dated

Dtcember 04, 2002. corrected the tint and notified the Unifonned Firefighter's AssodatJon that the Department would "reduce the S· FirefiaJlter on 4 Enaine Companies effective January 2, 2003 as pm of its mandated bud8et reductions. In the event firefighters' medical le.ve does not

return to the levels agreed upcn in the Stipub,tioll of Scntenlent Aareement entered iDtu on

JanUItY 30, 1996 .•• the Deptrunent wi)) exercise the right to reduct the 5* firefighter on 49 Enaine CompanMs on January 2,2003."

Thereafter on December 6, 2002, petitioners forwarded a Fonnal Grievance Presentation

~"By entering into this stipulation of settlement, the Union agreeI to waive the risht to file any litigation or grievance resardiD8 the Department Roster Staffing program u set forth in the case: dot:keted with the Office of Collective Bargaining aa BCIJ..126S-90. or with regard to the practical impact of this agreement until January 31, 2006. n Roster Staffing Agreement, Paragraph

Eleven.

3

based upon lho planned rtdwdoa to tour ttren&ham OD the ~ eapw compeWet. Pedtlo".', pinmc. will be Utfpted before lb. Board o(CoJlectJVt Barpinln ... requimJ by law and ''1bot tbt sam. issues prtllCnted in lha movin. papm be{on thJ. court. At final argwnent oftJUs JPPUcation. it wu not disputed that peti1fonm hid not flIed. petition before the Botrd of Collective BarpiniDg purIUIDt 10 Civil Service Law ,209·. ($) of the Stat. of New York for the sam. or similll' injWJCtive reUef' sought by them in-these PfOC*tdlnes.

1lIILAW

As DOted above, after careful considera1ion of the application for injunctive rtli~ u ~n as the respondmut Bnswerina p8pet'1lDd CI'Oa motion for an order and judgmerd dismiSiina the petitio", it W8I concluded that the evidence proffered in pctitiona-a' movins papen is insuftleient to set add. the Remer Stafftna Agreemen'l of January JOt J 996, inc:ludinl the provision wheMby petitioners wa:jved the right to litJa.to the issues presented in thelr moving pape1'I and petition.

As also noted in ·footnote one, several allegations were made during argument to 1he effect that respondent City of New York intentionally or recklessly caused the increase in sick leave above the prescribed threshold, but the mavin, papers - conceded to be imperfect - did not support that conclusion. :D such a c~e. 1.1~ pdTtiea are bound by their agreement. See Sshacht y. City of New Yode. 39 NY2d 28 (J 979); ManR of New York Lackawanna £ Western R,R. Co" 98 NY 447 (188S); Abt v' City ofl'!ew Ygrk, 243 AD2d 293 (J. Dept. 1997); Childs v' J.ryjn. J~J AD2d 318,319 (I" Deptt 1989).

Funher, it was concluded tha1 even if the waiver provision contained in the Roster Staffing Agreement did 001 bind, denia] of petitioners' application and dismissal oftMir petition W83 mandated by the fact that petitioners had not pursued and exhaUSled the:ir adminiSU'8tive

4

•

remedies before the New Yoric. City Board of Collective Bargainina. Sec Civil Service Law 209-1 ($); Uniformed FimflghtO[J Associatign V. tho City oeNni)'ori. 79 NY2d 236 (1992). See also McManus v, The New York City Dmrtmmt gfrms and RcmlUon,. 210 AD2d 72 0" Dep't 1994).

further. and aside from the aforesaid barrien. the pat1em of government in the State of New York lneludel the separation of the executive, legislative and judicial powas~ and requiJu that each branch of government should be fret from interference in the Jawful disclwae of duties by the other branches. See Marter of New York Ssat' Inspection. Security ODd Yw Enfors;emw Emplgym. Piltrict COUNII Hlp AFSCME .. AFL-Cro v· Cugmo. 64 NY2d 233 (1984);

MancUSO v. Koch. I S6 AD2d,209 O· Dep't J 989). By seeldna to vindicate their lelally protected interest in. safe worJeplate, petitioners called ,for I remedy which would have embroiled the judiciary in the management and operation of the Fire Depar1ment of the City of New York. See Maner of New York SlIte InmRao. S"uri~ and Law Enfon:ement Employm. QjstriCj1 CQ))D$f1 82. AESCME, AFL-C10 y. Cugmo. mm:a at 239. Such I result would have been contrary to the principle that the manqement and operation of municipal government. which require Jb;jiiolOS reaardins the quality and qwmtity of municipal services. should not be preempted by the judiciary, but should be left in the control of duly elected official •. See In..lbc Maner of Ricbmond HUl Block AUOCiation• Jnc. v, Dayid Nt Dinkins, II Maygr oflM City of New York. 149 Misc2d 654, 656 (Sup. Ct. Queens County 1991).

Finally, it was concluded that petitionen' appJieation for a preliminary injunction was flawed in two respects. In the first instance, petitioners failed to establish. likelihood of success on the merits, See CPLR §6301; PeIJearini v. Rockland Community actioD Counsel. Inc ..

5

" ..

•

, .

•

. .

190 AD2d 811 (3" Oep't J 993). Secondarily, there wu no showin, that \hey would suffer

IrreparabJ. harm in tho absence of a prtliminuy jnjunotJon. See UhnnOO v. Board olEd_em oeW Cit)! gtN.w York.. 5. AD2d 589 (2d Dep't1976). In any ev~ the court doet not posteD the authority to grant I preliminary injunetion prior to the nUns by petitionm of. petition for the sameor similar Injunctive RUcl beto ... the Board of Collective 8arpinina. See Civil Service Law §209·. (oS); Unifonncd Firefightm AuoclDtJOU y. the City oINew yom. 79 NY2d 236,

242-43 (1992).

J. S. C.

6

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Index No.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

In the Matter of the Application of

JAMES R. DAVIS III" as President of the New York City Deputy Sheriffs' Association, Supervising Deputy Sheriffs:

Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abde! Abdallah, Ivan Santos, Courtney Skinner, Maria Devlin, Herman Williams, JR., Deidre Robinson, Steven Brown,

Petitioners,

For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,

-against-

The City of New York; New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of the City of New York Department of Finance,

Respondents

AFFIRMATION OF WILLIAM S.J. FRAENKEL IN OPPOSITION TO PETITIONERS' MOTION FOR INJUNCTIVE RELIEF AND IN SUPPORT OF RESPONDENTS' CROSS-MOTION TO DISMISS

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York Attorney for Respondents

100 Church Street

New York, N. Y. 10007

Of Counsel: William s.J Fraenkel Tel: (212) 788~/247

NYCLIS No.

Due and timely service is hereby admitted.

New York, N,Y , 201 .

....................... , , , , Esq.

Attorney jor .