Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn.

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Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn. 2011 NY Slip Op 32627(U) August 19, 2011 Sup Ct, NY County Docket Number: 403068/2010 Judge: Lucy Billings 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. ANNEDON 101712011- [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK LUCY BtLLINGS PRESENT: COUNTY PART I E i ' W . U - V . +4 Justice Index Number : 403068/2010 INDEX NO. PORT AUTHORITY OF NY AND NJ MOTION DATE VS. PORT AUTHORITY POLICE MOTION SEQ. NO. SEQUENCE NUMBER : 001 MOTION CAL. NO. COMPEL OR STAY ARBITRATION hla motion to/for PAPER$ NUMBERFD ' Notice of Motion/ Order to Show Cause - Affldavtts - Exhibits ... I Answerlng Affldavlts - Exhlbtts 2-3 Replying Affidavits Cross-Motion: Yes Lr7 No UNFILEDJUDGMENT haa not k m entered by the County C M and notioe o entry m n o t be served based hereon. To f obbh entry, counsel or authorired representative must @pparin person at the Judgment Clerk's Desk (Room 1418). Dated: g\rq/ rr I I / - l l m ll . 3 fic - 5 LUCY B!LLI$JC3 J:'L J. S. C. Check one: FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: 0 DONOTPOST 0 REFERENCE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK PART 46 COUNTY OF NEW YORK: - - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ PORT AUTHORITY OF NEW YORK AND NEW JERSEY , _ -X _ _ _ _ Index No. 403068/2010 Petitioner -against- DECISION AND ORDER PORT AUTHORITY POLICE SERGEANTS BENEVOLENT ASSOCIATION, Respondent Ti J h S UNRLED JUDGMENT has been bythe County C k k of GW'WOt be Served based hereon. To _ _ _ _ _ _ _ _ - _ _ _ _ _ _ - - _ - - - - - - - - - - - - - - - CWM o authorized representative -m-wt.pm r w i n Person a tho Jodgrhent Clerk'a Re& (Rmn t 1418). LUCY BILLINGS, J.S.C.: Petitioner seeks to stay an arbitration demanded by respondent of ita Grievance # 45-10, to enforce provisions of a Memorandum of Agreement (MOA) between the parties effective January 1, 2003, as modified by an agreement dated January 29, 2009, executed by Carol Maresca on behalf of petitioner, referred to as the "Maresca Agreement." C.P.L.R. 5 7503(b). The MOA as a whole governs Port Authority Police Sergeants' wages, h o u r s , and conditions of employment. The MOA includes arbitration provisions, 5 XXII and Appendix G regarding t h e grievance arbitration procedure, and expressly excludes arbitration of disputes outside the MOA'S scope, such as complaints that petitioner has restricted, impaired, removed, or abolished a practice, procedure, or policy governing a term or condition of employment not set forth in the MOA. Petitioner claims t h a t respondent seeks to arbitrate the applicability of a letter executed by Carol Maresca and Michael panynj .135 1 [* 3] L. Gardner to respondent's President dated January 28, 2009, the day before the Maresca Agreement, which requires petitioner to increase its Detective Sergeant positions from 15 to 16 and is referred to as the "Maresca Letter." Respondent concedes that the Maresca Letter neither modifies nor is incorporated in the MOA and therefore is not subject to its arbitration provision. Instead, respondent's grievance and demand f o r arbitration claim petitioner's violation of the MOA, including the written modification of the MOA dated January 29, 2009, referred to as the Maresca Agreement. As long as respondent's grievance and arbitration demand claim a violation of employment terms incorporated in the MOA, then t h e dispute f a l l s within the MOA's grievance arbitration procedure. Specifically, respondent claims petitioner's violation of procedures for filling vacancies in Detective Sergeant positions and of overtime procedures f o r Police Sergeants. Respondent identifies a Detective Sergeant whose retirement caused Detective Sergeant positions to fall below the agreed 16 positions more than 30 days, requiring, under § XXXIII of the MOA, that all Detective Sergeant positions be treated as included in t h e MOA's Appendix M, Attachment A . Under Appendix M to the MOA, petitioner employer agreed to fill a vacancy on a "regularly scheduled tour of duty,l' A f f . of Mark O'Neill Ex. B, at 243, following specified procedural steps, and triggering the overtime procedure in Appendix I to the MOA. Respondent alleges that petitioner failed to follow those steps and that overtime procedure. panynj .135 2 [* 4] Respondent thus claims specified violations of the MOA, Appendices I and M, including Attachment A to Appendix M. Respondent s claims implicate the Maresca Agreement only insofar as it increases the threshold number of Detective Sergeant positions from 15 to 16. Although petitioner points out that the MOA S grievance arbitration procedure, 5 XXII and, Appendix G, does not expressly apply to any modifications of the MOA, the Maresca Agreement, unlike the Maresca Letter that petitioner may have mistakenly understood respondent to be referring to, expressly provides that the Maresca Agreement modifies and is incorporated in the MOA. While the MOA does not refer to future modifications, it does not bar them. Consequently, all references to 15 Detective Sergeant positions in the MOA are changed to 16 Detective Sergeant positions. Insofar as petitioner may claim that it never signed or authorized the Maresca Agreement or that it is otherwise unenforceable, petitioner may raise those defemes before the arbitrator in the arbitral forum. Petitioner iB entitled to and may expect the arbitrator s full consideration of any such unenforceability defense or other defense of nonliability for the claimed violations of the MOA. See Unite- n. of Teachers, Local 2 , AFT, 4 F L-CIO v. Board of E ~ I J C . of City Schooi Dipt. of City of N.Y., 1 N.Y.3d 72, 83 (2003); Commerce v. Nester, 90 N.Y.2d 255, 265 (1997). & Indus. Ins. Co. Those defensea are not grounds, however, to stay the arbitration proceeding. 7501. E.q., Silverman v. Benrnor Coats, 61 N.Y.2d 2 9 9 , panynj .135 3 C.P.L.R. § 307 [* 5] (1984); Sims v. Sieqelson, 2 4 6 A.D.2d 374, 376 (1st Dep't 1998). For the reason8 set f o r t h above, the c o u r t denies the petition to stay the arbitration and dismisses this proceeding. , C.P.L.R. §§ 409(b), 7503(b). This decision constitutes t h e court's order and judgment denying the petition and dismissing the proceeding. DATED: August 19, 2011 LV Q+----P LUCY BILLINGS, J.S.C. UNFlLED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served b a d hereon. To obtain entry, counsel or a u t h o d reprsSentaffve mud wP= in petson at the Judgment clerk'8 oesk (w 1416). panynj .135 y*J-ww 4

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