Opinion
401436/05.
Decided April 10, 2006.
In this Article 78 proceeding, petitioners the City of New York (the City), the New York City Fire Department (FDNY), Nicholas Scoppetta, as Commissioner of FDNY, the New York City Mayor's Office of Labor Relations (OLR), and James F. Hanley, as Commissioner of OLR, seek a judgment annulling a decision issued by the New York City Board of Collective Bargaining and the New York City Office of Collective Bargaining on March 31, 2005 (the Decision). Respondents District Council 37, AFSCME, AFL-CIO, Lillian Roberts, Local 2507, Patrick Bahnken, Local 3621, Thomas Eppinger (collectively the Union), the New York City Office of Collective Bargaining and Marlene A. Gold, Chair of the New York City Board of Collective Bargaining (collectively the Board), assert counterclaims, in their respective Answers, for an order confirming and enforcing the Decision.
NYC Office of Collective Bargaining
In the underlying administrative proceeding, the Union filed an improper practice petition against the City and FDNY, alleging that the City violated § 12-306 (a) (1) and (4) of the New York City Collective Bargaining Law (Administrative Code of the City of New York, Tit. 12, Chapt. 3) (NYCCBL) by failing to bargain independently with the Union over terms and conditions of employment for a bargaining unit compiled of uniformed employees in FDNY's Bureau of Emergency Medical Service (EMS). The City argued that it satisfied its obligation to bargain by negotiating the 2002 DC37 Memorandum of Economic Agreement, which allegedly included EMS employees, and by meeting with the Union. In the alternative, the City argued that the underlying administrative proceeding should be stayed pending litigation in this Court in Mayor of the City of New York v. Council of the City of New York (Sup Ct, NY County, Index No. 404987/01) (the Mayor v. Council case), wherein the Mayor challenged Local Laws 18 and 19 of 2001 (the Local Laws), which amended NYCCBL § 12-307 (a) (4), to allow, inter alia, EMS employees to bargain as uniformed rather than civilian employees. Subsequently, this Court held that Local Law 19 was valid and enforceable (Mayor v. Council, 2005 NY Slip Op. 50152 [U], Sup Court, New York County, Jan. 3, 2005 [Ling-Cohan, J]; see Copy of decision attached at Verified Answer with Counter-Claim, Exh. A). The Union and related parties were granted leave to intervene in the Mayor v. Council action and supported the position of the Council, upholding the validity of the Local Laws.
This matter specifically concerns only Local Law 19, which amended NYCCBL § 12-307(a)(4) to add the following provision: "For the purpose of this paragraph only, employees of the uniformed fire service shall also include persons employed by the fire department of the City of New York as emergency medical technicians and advanced medical technicians, as those terms are defined in section three thousand one of the public health law, and supervisors of emergency medical technicians or advanced emergency medical technicians". It should also be noted that in May 2003, prior to this Court's decision in Mayor v. Council, the Office of Collective Bargaining's Board of Certification issued a final decision and order on a representation petition filed by the Union certifying an independent bargaining unit of EMS personnel, in accordance with the amendments to NYCCBL § 12-307(a)(4). The City did not seek judicial review of this certification decision and order.
The NYC Board of Collective Bargaining (Board) then rendered its Decision. With respect to the stay, the Board found that the City's request to stay the proceedings was moot in light of this Court's entry of judgment in the Mayor v. Council case (Petition, Exhibit 1, Decision at 14). The Board's decision referred specifically to the stipulation between the Mayor and the City Council in the Mayor v. Council case, providing, inter alia, that "the enforcement of Local Law 18 and 19 of 2001 shall be stayed until a final judgment is entered in this matter in the Supreme Court, New York County" (Decision, at 3-4) (emphasis supplied). The Board concluded that this stipulation, by its own terms, was no longer in effect after the issuance of the decision and final judgment of this Court ( id.).
The Board further declined a stay for an indefinite period of time for the Mayor and the City to exhaust their appellate rights ( id.). The Board held that, in light of this Court's decision in the Mayor v. Council case upholding the Local Law 19, and its statutory duty under state and municipal law, it would enforce the NYCBBL, as amended ( id.). Accordingly, the Board found that the City violated NYCCBL §§ 12-306 (a) (1) and (4), in that it failed to satisfy its statutory duty to bargain with the EMS bargaining unit, and ordered the City to engage in good faith negotiations with the Union on behalf of the EMS bargaining unit ( id. at 14-16).
Petitioners challenge the Decision as being arbitrary and capricious only with regard to the Board's refusal to stay the proceedings pending the Mayor's appeal to the Appellate Division of this Court's determination in the Mayor v. Council case. Petitioners essentially argue that, in the event that the Appellate Division finds that the Local Law 19 is invalid, any actions taken pursuant thereto, including any collective bargaining agreements negotiated with the Union, will need to be undone. Thus, they contend that the Board should have refrained from issuing a decision, which enforced the NYCCBL, as amended by the Local Law 19, until there was a determination by Appellate Division.
Petitioners have not argued that they sought and obtained any stay of the declaratory judgment issued in Mayor v. City Council, or that they sought and obtained a stay of the underlying administrative proceeding.
Respondents assert that petitioners do not challenge the merits of the Decision. Respondents oppose petitioners' argument regarding the stay, contending, inter alia, that the Board acted within its statutory duty to enforce the NYCCBL, as amended by the Local Laws, and that the Decision is consistent with the applicable law.
DISCUSSION
On judicial review, a determination of the Board of Collective Bargaining "may not be upset, unless it is arbitrary and capricious or an abuse of discretion, as the Board is the neutral adjudicative agency statutorily authorized to make specified determinations" ( New York City Dept. of Sanitation v. MacDonald, 87 NY2d 650, 656). The law is clear that "an administrative agency's construction and interpretation of its own regulations and of the statute under which it functions is entitled to the greatest weight" ( Matter of Herzog v. Joy, 74 AD2d 372, 375 [1st Dept 1980], affd 53 NY2d 821).
Further, "[w]hen an administrative agency is charged with implementing and enforcing the provisions of a particular statute, the courts will generally defer to the agency's expertise and judgment regarding that statute" ( District Council 37, American Federation of State, County and Mun. Employees, AFL-CIO v. City of New York v. City of New York, 22 AD3d 279, 284 [1st Dept 2005]. Accordingly, the courts defer to the Board's expertise in applying and interpreting the provisions of the NYCCBL, so long as the Board's determination is reasonable ( id. at 284; see also Matter of Levitt v. Board of Collective Bargaining of the City of New York, 79 NY2d 120, 127-128).
Petitioners do not directly challenge the Board's determination regarding the City's violation under the NYCCBL, but instead object to that branch of the Decision where the Board decided not to stay the underlying proceeding pending the determination of the appeal in Mayor v. Council. Petitioners fail, however, in their moving papers, to demonstrate the legal basis under which the Board was required to or should have granted the stay.
Indeed, as noted by the Board in the Decision, and as indicated in the papers in the underlying proceeding, the City's request for a stay pending a determination by this Court in the Mayor v. Council case, based upon the stipulation between the parties in that action, became moot upon this Court's determination therein on January 3, 2005, as the stipulated stay only applied "until a final judgment is entered in [ Mayor v. City Council] . . . in the Supreme Court, New York County". Moreover, the Board asserts that the City did not provide the Board, prior to its Decision, with any notice that the decision in the Mayor v. Council case had been appealed, nor requested that the Board hold the underlying proceeding in abeyance pending appellate review of this Court's decision. The Board also asserts, without any dispute from petitioners, that it did not learn that an appeal had been filed until after it issued the Decision [ see Verified Answer with Counter-Claims of Board Respondents, at ¶ 50].
Additionally, petitioners do not demonstrate that a stay of the declaratory judgment was sought and obtained in the Mayor v. Council case in this Court or before the Appellate Division. Thus, the Board's decision to decline staying the improper practice proceeding before it for an indefinite period of time, in the event that the City sought to exhaust its appellate rights, was reasonable.
In their reply memorandum of law, the petitioners argue, for the first time, that the Board's refusal to stay the Decision was arbitrary and capricious, since "CPLR § 5519 (a) (1) precludes any effort to enforce those purported amendments until a resolution of the appeals process" [Reply Memorandum at 4]. In essence, petitioners seek to apply CPLR § 5519 (a) (1) to an administrative proceeding.
CPLR § 5519 (a) (1), by its express terms, only provides an automatic stay in favor of governmental appellants of "proceedings to enforce the judgment or order appealed from pending the appeal". (emphasis supplied; see Matter of Pokoik v. Department of Health Servs. of County of Suffolk, 220 AD2d 13, 14 [2nd Dept 1996]. The purpose of this provision is to maintain the status quo, as it operates to nullify enforcement of the judicial mandate pending appeal ( State of New York v. Town of Haverstraw, 219 AD2d 64, 65 [2nd Dept 1996]).
It has been held that this automatic stay provision applies only with respect to executory directives set forth in the judgment or order appealed from and "that the stay does not extend to matters which are not commanded but which are the sequelae of granting or denying relief" ( Matter of Pokoik v. Dept. of Health Servs. of County of Suffolk, 220 AD2d at 15). As stated by the Court Matter of Pokoik:
[T]he declaratory provisions of a judgment are not undeclared when a governmental party serves a notice of appeal therefrom. . . . Future acts which are not expressly directed by the order or judgment appealed from may nevertheless have the effect of changing the status quo and thereby defeating or impairing the efficacy of the order which will determine the appeal. In such cases, no automatic stay is available but the aggrieved party may apply to the appellate court to exercise . . . its inherent power to grant a stay of such acts in aid of its appellate jurisdiction.
( Id. [citations omitted, emphasis supplied]).
This Court first notes that the function of reply papers is to address arguments made in opposition to the position taken by the movant and not to introduce new arguments in support of, or new grounds for the motion ( Dannasch v. Bifulco, 184 AD2d 415, 417 [1st Dept 1992]). Petitioners' submission of this argument for the first time in their reply memorandum of law was improper and therefore need not be considered by this Court.
Even assuming arguendo, that this Court were to address petitioners' new argument, such argument is without merit. Petitioners have cited no precedent for their novel proposition that CPLR § 5519 (a) (1) applies to administrative proceedings; nor have they provided legal authority for the novel proposition that the § 5519 (a) (1) stay applies to declaratory judgment actions, which contain no executory provisions, such as in Mayor v. City Council. Petitioners do not argue that such judgment contains executory directives or that the administrative proceeding they sought to stay was one to "enforce the judgment or order appealed from". Given that Mayor v. City Council contained no executory directives, as it was a declaratory judgment action, CPLR § 5519 (a)(1) is inapplicable. ( See Matter of Pokoik v. Department of Health Servs. of County of Suffolk, 220 AD2d at 15.)
Furthermore, as CPLR § 5519 (a)(1) applies to enforcement actions, by its terms, such statute is inapplicable to the administrative proceeding at issue here. ( See Matter of Pokoik v. Depart. of Health Servs. of County of Suffolk, 220 AD2d at 14-5:" [W]hen a stay is obtained . . . it has the effect of temporarily depriving the prevailing party of the ability to use the methods specified by law ( see e.g., CPLR Art. 51, entitled "Enforcement of Judgment and Orders Generally") to enforce the executory provisions of the judgment").
In fact, a further review of other relevant CPLR provisions provides additional support that the CPLR § 5519 (a)(1)does not apply to administrative proceedings. CPLR § 101, entitled "Short title; Application", provides that the CPLR "shall govern the procedure in civil judicial proceedings in all courts of the state" (emphasis supplied); See Matter of IESI NY Corp. v. Martinez, 8 AD3d 667 [2nd Dept 2004]). "All civil judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorized" (CPLR 103 [b]). An administrative proceeding is not an action ( Matter of IESI NY Corp. v. Martinez, 8 AD3d 667, supra; see also Matter of Fiedelman v. New York State Dept. of Health, 58 NY2d 80). Since the underlying administrative proceeding was not a "civil judicial proceeding", the policy and procedures underlying CPLR § 5519 would not apply to the Board ( see Matter of IESI NY Corp. v. Martinez, 8 AD3d at 669, supra).
Thus, petitioners failed to demonstrate that the Board's decision to decline staying its determination until the City exhausted its appellate rights was arbitrary and capricious. Moreover, since petitioners failed to argue before the Board prior to its decision that a stay of the decision was required pursuant to CPLR § 5519, petitioners may not argue herein that the Board's failure to follow CPLR § 5519 was arbitrary and capricious.
The Union and the Board's counterclaims for an order, pursuant to NYCCBL § 12-308 [a] [2], confirming and enforcing the Decision, are granted. The Board is invested with the authority to, inter alia, prevent and remedy improper public employer and public employee organization practices (NYCCBL § 12-309), including the refusal to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees (NYCCBL § 12-306 [a] [4]). Courts defer to the Board's expertise in applying and interpreting the provisions of the NYCCBL ( District Council 37, AFSCME, AFL-CIO v. City of New York, 22 AD3d at 283-84). Since a review of the record demonstrates that the Board acted within its authority to interpret and enforce the NYCCBL, as amended by Local Law 19, and rationally determined that the City violated NYCCBL § 12-306 (a) (1) and (4), the Decision is confirmed and enforced in all respects (NYCCBL § 12-308 [a] and [c]).
NYCCBL § 12-308 [a] provides, in pertinent part, that "any order of the board [with respect to any improper practice specified in section 12-306 of this chapter] shall be . . . [2] enforceable by the supreme court in a special proceeding, upon petition of the board of collective bargaining, board of certification or any aggrieved party" [parenthetical supplied.
Accordingly, it is
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed, with costs and disbursements to respondents District Council 37, AFSCME, AFL-CIO, Lillian Roberts, Local 2507, Patrick Bahnken, Local 3621, Thomas Eppinger, the New York City Office of Collective Bargaining and Marlene A. Gold, Chair of the New York City Board of Collective Bargaining; and it is further
ORDERED and ADJUDGED that the counterclaims of respondents District Council 37, AFSCME, AFL-CIO, Lillian Roberts, Local 2507, Patrick Bahnken, Local 3621, Thomas Eppinger, the New York City Office of Collective Bargaining and Marlene A. Gold, Chair of the New York City Board of Collective Bargaining, pursuant to NYCCBL § 12-308 (a) (2), for an order confirming and enforcing the decision of the New York City Office of Collective
Bargaining dated March 31, 2005 are granted; and it is further
ORDERED and ADJUDGED that the decision of the New York City Office of Collective Bargaining dated March 31, 2005 is confirmed and enforced in all respects.
The foregoing constitutes the decision, order and judgment of this Court.