Melish v City of New York

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[*1] Melish v City of New York 2005 NY Slip Op 50516(U) Decided on January 7, 2005 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 7, 2005
Supreme Court, New York County

Stephen Melish, Jr., as President of Local Union 1069, Civil Service Employees, I.U.P.A.T., and LOCAL UNION 1969, CIVIL SERVICE EMPLOYEES, I.U.P.A.T., Plaintiffs,

against

City of New York; MICHAEL BLOOMBERG, as Mayor of the City of New York; NEW YORK CITY DEPARTMENT OF SANITATION; JOHN J. DOHERTY, as Commissioner of the City of New York Department of Sanitation; NEW YORK CITY HUMAN RESOURCES ADMINISTRATION; NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES; and VERNA EGGLESTON, as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, , Defendants.



116357/03

Doris Ling-Cohan, J.

Defendants move for an order, pursuant to CPLR 3211 (a)(5) and 3211 (a)(7), dismissing the complaint on the grounds that: (1) this action should have been brought as an Article 78 proceeding; (2) any claims of alleged displacement occurring more than four months prior to the commencement of this action are time-barred; (3) plaintiffs fail to state a cause of action against defendants because plaintiffs cannot demonstrate there has been displacement of their members by Work Experience Program (WEP) workers under the standard set forth in Rosenthal v. City of New York, 283 AD2d 156 (1st Dept 2001), leave denied 97 NY2d 654 (2001); and (4) plaintiff's broad construction of the anti-displacement provision of the New York State Social Services Law (SSL) impermissibly conflicts with both the federal and state statutory scheme for welfare reform. [*2]

Plaintiff Stephen Melish, Jr. is the President of Local Union 1969, Civil Service Employees, I.U.P.A.T. (the Union), a public employee organization, within the meaning of the New York City Collective Bargaining Law, Title 12 of Chapter 3 of the Administrative Code of the City of New York. The Union is certified to represent painters employed by the City and its agencies in connection with the terms and conditions of employment.

THE COMPLAINT

Plaintiffs commenced this action seeking declaratory and injunctive relief, alleging that the City of New York (the City), through its agencies, New York City Human Resources Administration and New York City Department of Social Services, have assigned, and continue to assign, public assistance recipients in WEP to perform painting and graffiti-removal work for the New York City Department of Sanitation (DOS) and other City agencies, which work was performed previously by DOS employees.

The complaint alleges that, by notice dated April 7, 2003, the City notified the Union that it intended to lay off certain Civil Service Painters, effective May 17, 2003. Pursuant to the notice, all six Civil Service Painters employed at DOS, who performed painting work, including graffiti-removal work at DOS and elsewhere, were removed from DOS. Plaintiffs claim that, since May 17, 2003, no Civil Service Painters have been employed at DOS, and that, upon information and belief, defendants have used, and continue to use, WEP workers to perform painting work, which was ordinarily performed by Civil Service Painters. They contend that this is in violation of the anti-displacement provisions of the Welfare Reform Act of 1997. [See Social Services Law (SSL § 336-c (2) (e))].

Article 78 Proceeding/Statute of Limitations

At the outset, the court notes that all parties have consented to the conversion of this action to an Article 78 proceeding, pursuant to CPLR 103 (c). See Rosenthal v. City of New York, supra at 158;[Plaintiff's Memorandum of Law in Opposition at 2; Defendants' Notice of Motion to Dismiss]. Thus, dismissal on the basis that this case should have been commenced as an Article 78 proceeding is deemed moot.

With respect to defendants' motion to dismiss any claims of alleged displacement occurring more that four months prior to the commencement of this action, it appears from the submitted papers that plaintiffs are not seeking relief for claims which occurred prior to May 17, 2003 (four months prior to the commencement of this lawsuit). Thus, dismissal of any claims accruing prior to May 17, 2003 does not appear to be warranted at this time. However, the within denial does not preclude defendants from asserting a statute of limitations defense in their answer, if appropriate.

CPLR 7803 limits the questions which may be raised in an Article 78 proceeding to those expressly identified by statute. Matter of Featherstone v. Franco, 95 NY2d 550 (2000).

Here, plaintiffs are challenging defendants' determination to assign WEP workers to perform [*3]painting and graffiti-removal work performed by six identified Civil Service Painters previously employed at DOS, in violation of SSL §336-c(2)(e)(i), (ii), (iv) and (v).

SSL § 336-c (2) (e) prohibits the employment of a public assistance recipient if it would result in: (i) the displacement of any currently employed worker or loss of position (including partial displacement such as reduction in the hours of non-overtime work, wages or employment benefits) or result in the impairment of existing contracts for services or collective bargaining agreements; (ii) the employment or assignment of a participant or the filling of a position when any other person is on layoff from the same or any equivalent position or the employer has terminated the employment of any regular employee or otherwise reduced its workforce with the effect of filling the vacancy so created with a participant assigned pursuant to this section; (iii) any infringement of the promotional opportunities of any currently employed person; or (iv) the performance, by such participant, of a substantial portion of the work ordinarily and actually performed by regular employees; and (v) the loss of a bargaining unit position as a result of work experience participants performing, in part or in whole, the work normally performed by the employee in such position.

WELFARE REFORM LEGISLATION

In 1996-1997, certain public assistance programs were created by statutes as part of "welfare reform" legislation. The federal program called The Personal Responsibility and Work Opportunity Reconciliation Act, 42 USC §§ 601, et seq., requires those who receive assistance under the federal program called Temporary Assistance for Needy Families (TANF) to work a minimum average number of hours per week (see 42 USC § 607 [c]). In order to obtain federal funding available under TANF, the states were required to develop a plan consistent with the requirements of the federal statute (see 42 USC § 602).

The New York State legislature enacted the Welfare Reform Act of 1997, Social Services Law §§ 131, et seq., to establish the new "Safety Net Assistance" program for single adults, and the "Family Assistance" program, and to meet the requirements of the TANF federal program. The Social Services Law expressly provides that each social services district shall meet or exceed the minimum participation rate for recipients of assistance funds, or be subject to severe financial sanctions (SSL § 335-b [1]; SSL § 153 [17]).

WEP is one of the work activities listed in SSL § 336 to which, under appropriate circumstances, a public assistance recipient may be assigned. (Social Services Law § 336(1)(d)). In exchange for welfare benefits, the City may, under certain circumstances, require aid recipients to work in WEP assignments with City, State or nonprofit agencies. (See SSL § 131 [5]). Social services districts, such as New York City, may require recipients of public assistance to work in the public sector "if sufficient private sector employment is not available" (SSL § 336 [1] [d]). The work [*4]performed by WEP workers must serve a "useful public purpose" (SSL § 336-c [2] [d]).

ARGUMENTS

Plaintiffs claim that defendants violated the "anti-displacement" provisions of the SSL by:(1) assigning WEP workers to perform work, resulting in the impairment of a collectively bargained agreement between the City and the Union; (2) assigning WEP workers to perform painting work while DOS has reduced its Civil Service Painter workforce; (3) assigning WEP workers to perform a substantial portion of the work ordinarily and actually performed by Civil Service Painters employed at DOS; and (4) causing the ongoing loss of bargaining unit positions of Civil Service Painters.

Defendants argue that plaintiffs' complaint should be dismissed for failure to state a cause of action because plaintiffs cannot demonstrate that there has been displacement of their members by WEP workers under the pleading standard set forth in the Appellate Division, First Department's decision in Rosenthal v. City of New York, supra.

In opposition, plaintiffs argue that they have sufficiently stated their causes of action because they have identified the laid off Civil Service Painters, and have alleged that the jobs were eliminated as a result of the assignments of WEP workers to fill the jobs.

DISCUSSION

The standard to determine a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7) is whether the facts stated are sufficient to support any cognizable legal theory. See Campaign for Fiscal Equity v. State of New York, 86 NY2d 307, 318 (1995). The court "must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader". Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366 (1998). Further, in opposition to a motion to dismiss, a plaintiff may submit affidavits "to remedy defects in the complaint" and "preserve inartfully pleaded, but potentially meritorious claims". Rovello v. Orofino Realty Co., 40 NY2d 633, 635, 636 (1976). Additionally, submissions of a party in opposition to a motion to dismiss are to be "given their most favorable intendment". Cron v. Hargro Fabrics, Inc., 91 NY2d at 366. This standard is applicable to Article 78 proceedings. See Fitzgerald v. Matthews, 244 AD2d 193 (1st Dept 1997); Tucker v. Battery Park City Parks Corp., 227 AD2d 318 (1st Dept 1996).

Here, enough is stated in the petition and in the supporting papers to meet the pleading standards set forth in CPLR 3211 and 7804 to warrant a denial of the within motion to dismiss.

Plaintiffs have alleged facts sufficient to state four causes of action: (1) for violation of SSL §336-c(2)(e)(i)(prohibiting, inter alia, WEP assignments resulting in the impairment of [*5]collective bargaining agreements); (2) for violation of SSL §336-c(2)(e)(ii)(prohibiting WEP assignments that result in the assignment of a WEP worker or the filling of a position when any other person is on layoff or the employer has otherwise reduced its workforce); (3) for violation of SSL §336-c(2)(e)(iv) (prohibiting WEP assignments that result in the public assistance recipients performing work ordinarily and actually performed by regular employees); and (4) for violation of SSL §336-c(2)(e)(v)(prohibiting WEP assignments resulting in the loss of a bargaining position).

Furthermore, the complaint, together with the submissions in opposition, meet the pleading requirements for challenging assignments of WEP workers under SSL §336-c(2)(e), as set forth in recent case law; the actual names and social security numbers of the six (6) civil service painters at issue have been supplied and the work assigned to the WEP workers has been identified, as well as the locus of those work assignments, with sufficient specificity to permit an individualized inquiry into the challenged assignments. See Rosenthal v. City of New York, 283 AD2d at 159; see Affidavit of Robert B. Stulberg, ¶5, and Exh. A to such Affidavit].

In seeking dismissal, defendants rely upon Rosenthal v. City of New York, 283 AD2d 156 (1st Dept 2001). However, this Court disagrees with defendants' interpretation of such case. In Rosenthal, leaders of a labor union on behalf of employees of the Parks Department commenced a similar action to the case at bar, seeking declaratory and injunctive relief. Id. at 157. They claimed that WEP workers were being assigned to work in park maintenance related tasks, in violation of the "anti-displacement" provisions of SSL §336-c (2)(e). Id. The court converted the action to an Article 78 proceeding, and held that violations of the statute must be supported by an individualized inquiry. Id.

The Appellate Division in Rosenthal stated:

It is irrelevant that it would be difficult, or even impossible, to pinpoint the specific job positions of WEP workers assigned to the Parks Department. The claims emanate not from a categorization of the assignments of WEP participants, but rather from the claimed displacement of union employees. Whether each adverse employment determination affecting a Parks Department employee violated Social Services Law §336-c(2)(e) can be determined by examining each individual case..."

Id. at 159(citations omitted). Defendants misinterpret this to mean that to assert a claim, plaintiffs are required to demonstrate displacement of an identified individual by an identified WEP worker.

However, nowhere in Rosenthal does the Appellate Division specifically require that a pleading alleging a violation of SSL §336-c(2)(e) name specific WEP workers who have displaced [*6]particular named civil service employees. Rather, Rosenthal requires only that a pleading alleging a violation of SSL 336-c(2)(e) assert the circumstance of the "claimed displacement" in sufficient detail to permit the defendants to assess "each individual case". Id. Here, plaintiffs have complied with the pleading requirements set forth in Rosenthal; plaintiffs have specifically identified the six Civil Service painters who were allegedly displaced by the assignment of WEP workers, as well as the specific job positions of WEP workers assigned to the Parks Department to do the work previously performed by the six former DOS Civil Service Painters, namely, painting and graffiti-removal work.

Thus, the information provided by plaintiffs in the pleadings and subsequent submissions are "sufficiently specific to allow review of the individual circumstances of each incident". See Rosenthal v. City of New York, 2 Misc 3d 451, 457 (Sup Court, New York County 2003). With the benefit of the names of the alleged displaced painters which have been supplied, defendants would undoubtedly be able to trace their work sites and what WEP workers, if any, were working at such sites. Unlike in Rosenthal v. City of New York, 2 Misc 3d at 457, here, the record contains sufficient details regarding the alleged displacements to allow review of the individual circumstances of each incident, and is not "based solely upon statistical overviews of a correlation between the number of [municipal] employees and the number of WEP participants". Id. at 457. Additionally, the court notes that in Rosenthal v. City of New York, supra, the court was not addressing a motion to dismiss as in the instant case; Rather, it was examining the actual merits of the case.

Furhermore, the Court notes that plaintiffs have attempted, through a FOIL request to HRA, to obtain the names of the WEP workers assigned to the tasks of painting and graffiti-removal work; however, plaintiffs assert that they have yet to receive a response to such request. [Affidavit of Robert B. Stulberg, ¶11].

Thus, the complaint, together with the submissions in opposition, sufficiently state causes of action cognizable under CPLR Article 78 to withstand defendants' motion to dismiss. Whether or not petitioners will ultimately be entitled to the remedy which they seek is not the issue at this early juncture. See Matter of Nowlin v. Schriver, 269 AD2d 630 (3d Dept 2000).

That portion of defendants' motion which seeks to dismiss this case on the ground that plaintiffs' broad construction of the anti-displacement provision of the SSL impermissibly conflicts with both the federal and state statutory scheme for welfare reform is also denied as such ground is not a basis for dismissal as provided by CPLR 3211(a)(5) nor (7).

Accordingly, it is

ORDERED that defendants' motion to dismiss the petition is denied in its entirety; it is further

ORDERED that this action is converted to an Article 78 proceeding; it is further

ORDERED that defendants shall serve its answer upon petitioners within 20 days of service of a copy of this order with notice of entry; it is further [*7]

ORDERED that plaintiffs may re-notice this matter in accordance with CPLR §7804(f); and it is further

ORDERED that within 30 days of entry of this order, plaintiffs shall serve a copy upon defendants and the Clerk of the Court, with notice of entry.

Dated: January 7, 2005

DORIS LING-COHAN, J. S. C.

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