Old Brookville Policeman's Benevolent Assn., Inc. v Incorporated Vil. of Muttontown

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Old Brookville Policeman's Benevolent Assn., Inc. v Incorporated Vil. of Muttontown 2012 NY Slip Op 30700(U) March 13, 2012 Supreme Court, Nassau County Docket Number: 007087/11 Judge: Stephen A. Bucaria Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] 5 CSHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEPHEN A. BUCAR Justice TR/IAS , PART NASSAU COUNTY OLD BROOKVILLE POLICEMA' BENEVOLENT ASSOCIATION , INC. INEX No. 007087/11 Plaintiff, MOTION DATE: Feb. 3 2012 Motion Sequence # 004 -against- TH INCORPORATED VILLAGE OF MUTTONTOWN, THE INCORPORATED VILLAGE OF OLD BROOKVILLE , THE INCORPORATED VILLAGE OF BROOKVILLE , TH INCORPORATED VILAGE OF COVE NECK , THE INCORPORATED VILLAGE OF MATINCOCK , TH INCORPORATED VILLAGE OF MILL NECK, INCORPORATED VILLAGE OF UPPER BROOKVILLE and TH BOAR POLICE COMMISSIONERS OF THE OLD BROOKVILLE POLICE DEPARTMNT Defendants. In the Matter of INEX No. 07620/11 PERICLES LINAROS MOTION DATE: Feb. Motion Sequence # 004 Petitioner- Plaintiff 3 , 2012 [* 2] OLD BROOKVLLE POLICEMA' S BENEVOLENT Index no. 007087/11 ASSOCIATION, INC. LINAROS Index no. 7620/11 For a Judgment Pursuant to Aricle 78 300 1 of the Civil Practice Law and Rules and -against- TH BOAR OF TRUSTEES OF THE INCORPORATED VILAGE OF MUTTONTOWN, TH INCORPORATED VILLAGE OF MUTTONTOWN , TH INCORPORATED VILAGE OF OLD BROOKVILLE THE INCORPORATED VILAGE OF BROOKVILLE TH INCORPORATED VILAGE OF COVE NECK TH INCORPORATED VILLAGE OF MATINCOCK , TH INCORPORATED VILLAGE OF MILL NECK , THE INCORPORATED VILLAGE OF UPPER BROOKVILLE, and TH BOAR OF POLICE COMMISSIONERS OF THE OLD BROOKVILLE POLICE DEPARTMENT Respondents- Defendants. The following papers read on this motion: Notice of Motion.... """"'"'''''' ............. ..... XX AffIrmation in Opposition.......................... X AffIrmation in Support....... ....................... XX Reply AffIrmation. .......... ................... ......... X Memorandum of Law ................................. Motion by defendants Vilage town and its Board of Trustees to dismiss the amended complaint in action # a:ranted subject to plaintiffs right to proceed to arbitration. Motion by defendant Vilage to dismiss the amended petition/complaint in action denied However, the Aricle 78 petition to anul the Vilage 1 is # 2 for lack of standing is resolution is denied on the merits. of Mutton ," [* 3] OLD BROOKVILLE POLICEMAN' S BENEVOLENT ASSOCIATION, INC. LINAROS Index no. 007087/11 Index no. 7620/11 Action # 1 was commenced on May 13 2011. Plaintiff Old Brookvile Policeman Benevolent Association , the union representing Old Brookvile police offIcers , seeks a declaratory judgment with respect to the Vilage s contractual obligation to provide police ervices jointly with the neighboring communities. The union also seeks an injunction reinstating its members to their positions pending arbitration pursuant to the collective bargaining agreement. Action # 2 was commenced on May 24 , 2011. Petitioner Pericles Linardos, a Muttontown resident and vilage taxpayer, brings an Aricle 78 petition in the nature of mandamus to anul a resolution of the Muttontown vilage trstees dated March 22 , 2011 establishing a vilage police departent. Petitioner also seeks declaratory relief similar to that sought by the union. Begining in 1950 , respondent Vilage of Mutton town and various other vilages on the north shore of Long Island provided joint police protection services though respondent Old Brookvile Police Deparment. Until recently, the vilages of Old Brookvile , Brookvile Upper Brookvile , Cove Neck , Matinecock, Mil Neck , and Muttontown provided police services in this maner. The vilages have apportioned the cost of these services , including the maintenance of a police headquarers , through a series of joint police protection contracts. The most recent joint protection contract covered the period June 1 , 2006 though May 31 , 2011. The contract apportions the costs among the vilages based on real propert tax assessments, rather than a vilage s population or number of police calls. The joint contract provides that upon expiration or withdrawal each vilage shall neverteless remain obligated to pay its respective pro rata share.. . for Joint Police Protection Service costs , liabilties and obligations incured prior to such expiration or withdrawal , but paid or becoming due and payable after expiration or withdrawal." The Vilage of Old Brookvile has entered into a series of collective bargaining agreements with the Old Brookvile Policeman s Benevolent Association covering police offIcers ' terms and conditions of employment. The agreement recognizes the union as the exclusive bargaining representative for police offIcers and contains a grievance procedure culminatig in binding arbitration. The curent collective bargainng agreement expires May , 2012 , one year beyond the j oint police protection contract. [* 4] OLD BROOKVILLE POLICEMAN' S BENEVOLENT ASSOCIATION, INC. Index no. 007087/11 LINAROS Index no. 7620/11 On March 22 , 2011 , the Vilage of Mutton town adopted a resolution establishing its own vilage police department. According to the Vilage , it adopted the resolution because its share of the Old Brookvile Police Deparent' s operating cost has increased in recent years, presumably as ta assessments relative to the other vilages have increased. According to petitioner, an allocation based upon assessed value is advantageous to Muttontown because , while it has only 25.4% of the total assessed valuation , it has 29 % of total population and receives approximately 33 % of "police deparent resources. " Neverteless cost is clearly a factor as the Vilage intends to hire police offIcers not represented by the Old Brookvile PBA and to offer a pay scale less generous than that provided by the current collective bargaining agreement. The union seeks a declaratory judgment that Muttontown is bound by the joint police protection contract to fund its pro rata share of the police departent budget. The union seeks a declaration that the other vilages are bound to provide police protection to Muttontown though the expiration of the collective bargaining agreement on May 31 , 2012. fuer Linardos seeks a judgment anullng the Muttontown resolution as arbitrary and to law. Linardos asserts that the vilage board failed to follow U. Deparent of Justice guidelines for establishing a local police deparent, failed to enter capricious and contrar into an inter-municipal agreement with the Nassau County Police Deparent , failed to hire a suffIcient number of experienced police offIcers , and failed to consider the environmental impact of establishing a vilage police deparent. By order dated December 7, 2011 , the cour dismissed the complaint in action # 1 as against the Vilage of Brookvile for the reasons stated in the cour' s order dated July 29 2011 , denying plaintiffs motion for a preliminar injunction. In its July 29 order, the court held that since municipalities have the power to terminate agreements for joint services , they have the power to withdraw from such agreements upon the expiration of their terms (See General Municipal Law ~ 119-0). The court fuer held that the provision in the joint police protection contract obligating each vilage for its pro rata share of pre-withdrawal liabilties was not intended to restrict a vilage s right to withdraw from the joint police protection agreement. By order dated December 7 2011 , the cour dismissed the amended petition/complaint in action # 2 as against the defendant Old Brookvile for lack of standing. The court determined that failure to accord tapayer standing to Linardos would not result in an [* 5] OLD BROOKVLLE POLICEMAN' S BENEVOLENT Index no. 007087/11 ASSOCIATION, INC. LINAROS Index no. 7620/11 impenetrable barer" to judicial review of the resolution establishing the Muttontown vilage police deparent , as the union had brought a declaratory judgment action with respect to the legality of the Vilage resolution. Defendant Vilage of Mutton town moves to dismiss the complaint in action # I on the ground that the police union is not a par to the joint protection contract and is not a third par benefIciar of the joint protection contract. To have standing to enforce a contract as a third par benefIciar, plaintiff must Fourth Ocean Putnam v Interstate Wreckinll 66 NY2d 38 (1985)). The union has not shown that it is an intended third par benefIciar of the joint protection contract. show an intent to benefIt Under the joint protection contract , a vilage is not obligated for its pro rata share of police costs which are incured subsequent to withdrawal. However, an employer who is a member of a multi-employer bargaining association is bound by an agreement negotiated by the association (NLRB v Hartman , 774 F. 2d 1376 , 1383 (9th Cir 1985)). In the private sector, once a multi-employer bargaining unit is established , federal law dictates that reasonable controls limit the manner in which withdrawal may be permitted (Id). There is a similar need for stabilty in the performance of joint municipal contracts , which are akin to multi-employer bargaining relationships. Thus , even after withdrawal , the vilages may be liable for a portion of subsequently accrued police salaries and benefIts pursuant to the collective bargaining agreement. Accordingly, defendant Vilage ofMuttontown s motion to dismiss the complaint is I:ranted , with leave to the union and its members to pursue their rights in arbitration. Because of the public interest in effective , but effIcient , law enforcement, the cour declines to issue an injunction in aid of arbitration, as a matter of discretion (CPLR ~ 7502(c)). Defendant Vilage of Mutton town moves to dismiss the petition/complaint in action # 2 for lack of stading. Defendant argues that Linardos is not a par to the joint protection contract or the collective bargaining agreement. In view of the dismissal of the union declaratory judgment action , the cour grants taxpayer standing to Linardos. However , the cour determines that the Vilage of Muttontown resolution establishing its own police deparent was not arbitrar and capricious or contrar to law. The decision of whether, and in what maner, to provide vilage police is within the sound discretion of properly elected vilage authorities. The Aricle 78 petition seeking to anul the Vilage of Mutton town [* 6] OLD BROOKVILLE POLICEMA' S BENEVOLENT Index no. 007087/11 ASSOCIATION, INC. LINAROS Index no. 7620/11 resolution dated March 22 , 2011, establishing a vilage police deparent So ordered. Dated MAR 1 3 2012 ENTERED MAR 1 4 2012 NASSAU COUNTY COUNTY ClIRl" 01'''1 , is denied

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