Matter of Freeport Police Benevolent Assn. v Incorporated Vil. of Freeport

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Matter of Freeport Police Benevolent Assn. v Incorporated Vil. of Freeport 2012 NY Slip Op 31186(U) April 20, 2012 Sup Ct, Nassau County Docket Number: 003363-12 Judge: Arthur M. Diamond 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] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHU M. DIAMOND Justice Supreme Court ----------------------------------------------------------------------- x TRIAL PART: 10 In the Matter of the Application of NASSAU COUNTY FREEPORT POLICE BENEVOLENT ASSOCIATION Petitioner, INDEX NO:003363- For an Order Pursuant to Aricle 75 of the Civil Practice Law and Rules MOTION SEQ. NO# 1 -against- SUBMIT DATE: 04/06/12 The INCORPORATED VILLAGE OF FREEPORT Respondent. ------------------------------------------------------------------ x The following papers having been read on this motion: Order to Show Cause............................. Op P ositi 0 D.................................... Rep Iy Memo rand UID... Upon the foregoing papers , it is ordered that the Petitioner s application for preliminar injunctive relief pending disposition , through arbitration, of an interrelated contract grievance is determined as hereinafer ariculated. The instant proceeding emanates from a dispute between contracting paries , the Freeport Police Benevolent Association and the Incorporated Vilage of Freeport , respectively, and concerns the latter s unilateral decision to implement changes in health insurance provided to a segment of its retirees. Under an existing collective bargaining agreement (hereinafter " CBA"), the Respondent is contractually obligated to " (p)ay one hundred (100%) percent of the medical and hospitalization insurance for retired members of the Deparment in the same maner the member would have been covered ifhe or she were stil an active member ifhe or she does not receive such coverage by virtue of other employment , State legislation or otherwise " (ex A , Petition , CBA g 25. 0 supplied)). (emphasis " ( [* 2] Shawn Radall , the Petitioner s current president, avers that the changes contemplated violate the CBA " (b )ecause the new plans do not cover the (retired) member in the same maner the active members are covered (in that retirees) have lost access to in network doctors , have to use a debit card and e-mail to have the same copay coverage , and must keep receipts of transactions in order to validate the debit card charges , supporting affdavit). At the time of the execution of the underlying Order to Show Cause , the proposed changes had yet to be implemented. A cour evaluating a motion for a preliminar injunction must be mindful that' (t )he purose of a preliminar injunction is to maintain the status quo not to determine the ultimate rights of the paries (Matter of Wheaton/TMW Fourth Ave. , LP New York City Dept. ofBldgs. 65 AD3d 1051 Alley Pond Owners Corp. 25 AD3d 642 643). (Masjid Usman, Inc. 1052; see Coinmach Corp. Beech 140, LLC 68 AD3d 942 , 942 - 943). Although the purose of a preliminar injunction is to preserve the trial , the remedy is considered a drastic one , which should be used sparingly Vogel status quo pending a (see McLaughlin, Piven Co. 114 AD2d 165 , 172). As a general rule , the decision to grant or deny a Nolan preliminar injunction lies within the sound discretion of the Supreme Cour (see Doe Axelrod, 73 NY2d 748 , 750). In exercising that discretion , the Supreme Cour must determine if the moving par has established: (1) a likelihood of success on the merits , (2) irreparable har in the absence of an injunction, and (3) a balance of the equities in favor ofthe injunction 75 NY2d 860 862; w.T. Grant Co. 503; Matter of Merscorp, Inc. 835)" (Trump on the Ocean, LLC Srogi 52 NY2d 496 Apa Sec, 517; Romaine 295 AD2d 431 Ash 81 AD3d 713 , 715 (see Aetna Ins. Co. 432; Inc. Capasso Apa 37 AD3d 502 Solork Assoc. 37 AD2d Albini Iv dismissed 17 NY3d 875). (P)ursuant to CPLR 7502 (c), the Supreme Cour may grant a preliminar injunction ' connection with an arbitration that is pending or that is to be commenced inside or outside this state but such relief may be granted ' only upon the ground that the (arbitration) award to which the applicant may be entitled may be rendered ineffectual without such provisional relief (CPLR 7502 (c)). par seeking relief under this provision must also make a showing: of the traditional equitable criteria for the granting of temporary relief under CPLR aricle 63 Corp. Kaufman 16 AD3d 688 , 689- 690). (Winter (see Matter of K. w.F. Realty Brown 49 AD3d 526 528 - 529 (emphasis [* 3] supplied); see also Alexander , Supplemental Practice Commentaries , Mc Kinney s Cons. Laws of , Book 7B , C7502:6). In this Court' s view , application ofthe governing legal principles to the facts presented in the Record supports the issuance of preliminar injunctive relief. A grievance may be submitted to arbitration only where the paries agree to arbitrate that kind of dispute , and where it is lawfl for them to do so. In determining whether a grievance is arbitrable , we therefore follow the two-par test enunciated in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Ass n) (42 N. 2d 509 (Liverpool)) Matter of Board ofEduc. of Watertown City School Dist. (Watertown Educ. Ass n) (93 N. Y.2d and 132 143 (Watertown)). We first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance (see Liverpool 42 N. Y.2d at 513). This is the may- they-arbitrate ' prong. If there is no prohibition against arbitrating, we then examine the CBA to determine if the paries have agreed to arbitrate the dispute at issue at 140; (see Watertown 93 N. Y.2d Liverpool 42 N. Y.2d at 513- 514). This is the ' did- they-agree-to-arbitrate ' prong. (Matter of City of Johnstown (Johnstown Police Benevolent Association), Lacking a 99 NY2d 273 278). statutory, constitutional or public policy argument against the grievance submission to arbitration , the Cour' s focus narows to the scope of the paries ' agreement. Matter of Matter of Vilage of Horse heads (Horseheads Police Benevolent Association, Inc. AD3d - - NYS2d _ (see App. Div. LEXIS 2564 (3d Dept.)) 2012 N. Y. Tellngly, the controlling provisions of the CBA provide for arbitration of any unesolved grievance concerning the interpretation of the paries ' contract (see ex A , Petition , CBA , g 3. 0). Where , as here , there is a broad arbitration clause and a ' reasonable relationship ' between the subject matter of the dispute and the general subject matter of the paries ' collective bargaining agreement , the court ' should rule the matter arbitrable , and the arbitrator wil then make a more exacting interpretation of the precise scope of the substantive provisions of the (collective bargaining agreement), and whether the subject matter ofthe dispute fits within them (Matter of Board ofEduc. (Watertown Educ. Assn.), 93 NY2d 132 , 143; see, Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.j, supra). " (Matter of Van AD2d 806 , 807 - 808 (4th Dept.)) Scoy Holder , 265 ), [* 4] Moreover, and contrary to the view espoused by Respondent's counsel , the Petitioner has the (See, Matter of City of Ithaca (Ithaca Paid requisite standing to seek relief for its former members. 737), 29 AD3d 1129 (3d Dept.)). Fire Fighters Association., IAFF, Local Notably, " issues concerning the (Petitioner s) relationship to retired employees , issues concerning whether retirees are covered by the grievance procedure , and issues concerning whether the clauses of the contract support the grievance are matters involving the scope of the substantive contractual provisions and , as such , are for the arbitrator (Vestal Teachers Assn. 2 AD3d 1190 , 1192 Iv denied (see Matter of Vestal Cent. School Dist. 2 N. Y.3d 708). We note in addition that New York' s public policy encourages arbitration oflabor disputes involving public employees ofBoardofEduc. ofW Irondequoit Cent. School Dist. 1037 , 1038). (see Matter West Irondequoit Teachers Assn. Town of Orchard Park 92 AD3d 1232 (4th Dept.); (Matter of Mariano 55 AD2d see also Matter of Union- Endicott Central School District (Union- Endicott Maintenance Workers Association), 85 AD3d 1432 , 1436 (3d Dept.)). That the Petitioner s interpretation of the substative rejected , ultimately, is not an issue within the Cour' s clauses in the underlying CBA may be purview. On the contrar, " (i)t is for the arbitrator, and not the courts , to resolve any uncertainty concerning the substantive rights and obligations of these paries (Matter ofWyandanch Union Free School Dist. . Assn., supra). " (Matter of Board of Education of the Deer Park Union Free School District Park Teachers Association Wyandanch Teachers Deer 50 NY2d 1011 , 1012). Importantly, it is not for this cour to determine *** the merits *** upon a motion for preliminar injunction; rather , the purose of the interlocutory relief is to preserve the status quo until a decision is reached on the merits (citations omitted). Viewed from this perspective , it is clear that the showing of a likelihood of success on the merits required before a preliminar injunction (cf. Rosemont may be properly issued must not be equated with the showing of a certainty of success Enterprises aprimafacie accord: denied McGraw-Hil 85 Misc 2d 583 585). It is enough if the moving par makes showing of his right to relief. (Tucker Toia 54 AD2d 322 325 - 326 (4th Dept.); Book Co. McLaughlin, Piven, Vogel, Inc. W J. Nolan Company, Inc. 114 AD2d 165 , 172- 173 67 NY2d 606). Here , the changes contemplated in health insurance coverage afforded the effected group [* 5] represent , at a minimum , a facial deviation from that which is provided active members of the Respondent's police force. Such facial deviation , standing alone , satisfies the first of the traditional criteria for injunctive relief. The second element of proof required for a preliminar injunction is proof that irreparable injury wil occur if the relief is denied. Irreparable injur, for puroses of equity, has been held to (McLaughlin, Piven mean any injury for which money damages are insufficient (citation omitted). Vogel, Inc. W. J Nolan Company, Inc. , supra at 174) Here , monetar damages are a weak substitute for the anticipated disruption in the continuity of medical care that may result frorn the implementation of the changes contemplated with its varant panel of " in-network" physicians. To fulfill the remaining criterion , the applicant must demonstrate "that the irreparable injur to be sustained is more burdensome to (its retirees) than the har that would be caused to the (see Klein, Wagner (municipality) though the imposition of the injunction Klein, P. Transp. Corp. McLaughlin, Piven, Vogel 186 AD2d 631; P Tanker Corp. Corp. - AD3d - - NYS2d _ In this regard it merits 84 AD2d 796). 2012 N. Y. mention that Nolan Morris Co. Lawrence A. 114 AD2d 165; Station Square Inn Apartments (Lombard App. Div. LEXIS 2458). ipse dixit statements within counsel' s opposing affirmation which address the issue of respective burdens is devoid of probative value. Zuckerman Poling (see City of New York 49 NY2d 557 , 562 - 563). In any event , the claimed , albeit unquantified, economic consequences the Respondent envisions as a corollar to the issuance of preliminar injunctive relief does not tip the balance of equities in its favor. In the event the Respondent ultimately prevails on the merits , the savings it expects to realize will not be forfeited , merely delayed. Based on the foregoing, the Cour finds it appropriate to enjoin implementation of the contemplated changes in order to maintain the status quo pending disposition of the grevance. Without its issuance , the award , were the Petitioner to prevail , may be rendered ineffectual CPLR 7502 (c)). Stated alternately, the granting of injunctive relief wil (a) potential arbitral award' (1985 N Y Legis An , at 118). " (Cove (see " ' preserve the effcacy of Rosenblatt 148 AD2d 411). The temporal parameters of the relief herein afforded are governed by CPLR 7502 (c), and /; [* 6] the attention of counel is most respectfully directed thereto. Pursuant to the unequivocal mandate of CPLR 6312 (b), the Petitioner shall post an undertaking. Singer (See, Putter 73 AD3d 1147; Masjid Usman, Inc. Beech 140, LLC, supra). Counsel shall submit affirmations as to the issue of the amount of the undertaking to be imposed by the cour to cover any damages to respondent as a result of the injunction granted. This constitutes the decision and order of . S Cooo. DATED: April 20 , 2012 HON. ARTHUM. DIAMOND ENTERED APR 25 2012 NASSAU COUNTY COUTY CLIRK" OfFICI To: Attorney for Petitioner Attorney for Respondent DAVIS & FERBER, LLP. BEE READY FISHBEIN HATTER & DONOVAN , LLP. 170 Old Countr Road , Suite 200 Mineola, New York 11501 1345 Motor Parkway Islandia, New York 11749

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