Matter of Mulgrew v City of New York

Annotate this Case

Download PDF

Matter of Mulgrew v City of New York 2012 NY Slip Op 33613(U) September 12, 2012 Sup Ct, New York County Docket Number: 102170/12 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNEDON9/18/2012--------------------- [* 1] SUPREME COURT OF THE STATE.OF NEW YORK- NEW YORK COUNTY PRESENT: ~__._...M~A~N~U~EL=-=-'J.~M~E-N~P-E~Z'"--~ PART.-1~3__ Justice In the Matter of the Application of MICHAEL MULGREW, AS PRESIDENT OF THE UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, INDEX NO. --'-'10=2-'--'17=0/:..:.1:::::..2_ MOTION DATE -1'-"e..... -2=-01=2'--_ MOTION SEQ. NO. 001 MOTION CAL. NO. - - - - - - _....,os..... Petitioner, -against THE CITY OF NEW YORK; the OFFICE OF ADMINISTRATIVE TRIALS ANO HEARINGS; DAVID GOLDIN In hie official capacity ae ADMINISTRATIVE JUSTICE COORDINATOR, OFFICE OF THE MAYOR and QGMENT SUZANNE A. BEDDOE In her capacity ae UNF\LED JU h county Clerk COMMISSIONER AND CHIEF ADMINISTRATIVE not been entered t ~ hereon. To LAW JUDGE OF THE OFFICE OF ADMJ¥ti.J~dnt nas cannot be served a sentative must TRIALS AND HEARING, and notice of entryse\ or authorized r~. [)eSk {RoOIR obtain entry. coun at the Judgment C Respondents, pear in person . ___ ,..,. bb c;; z 0 w (I) 5 ap for a Judgment Purauant to Article 78 of\6i\6). Civil Practice Law and RulH. i:::: et: C> =>z _ ¢._J· · ,_, --- .-..Iii' (.) tii U) . ~ ""'"~ ... ~··~/t·""" - ¢' ___ ,. . .,.....,.r. .:_., .. , . - ' ¢_.}- .. I . . . . . . . . . t.·'0 The following papers, numbered 1 to 7 and Cross-Motion to Dismiss the Petition ..... were read on this petition to/for _,A....,rt.,.. 7.:c..8_ _ _ __ ~i .... 0 ·Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1-3 et: 0 et: u. Answering Affidavits - Exhibits _ _ _croH motion Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 4-6 c ..J w ..J WW PAPERS NUMBERED 7 u.~ w .... et: et: Cross-Motion: X Yes ..J Petitioner pursuant to CPLR Article 78, seeks a declaration that the policy Instituted by the respondents requiring Hearing Officers (per session) In the bargaining unit represented by the United Federation of Teachers, CIO (UFT) who are assigned to the Health Tribunal at the Office of Administrative Trials and Hearings (OATH), to submit decisions and see the Managing Attorney, prior to dismissal of any Notice of Vlolatlon In its entirety, is arbitrary and capricious 1 In error of law, ultra vires and in violation of the Rules of the City of New York (RCNY). Petitioner also seeks an order directing respondents to refrain from any further unlawful conduct; and ordering respondents to take further action to ensure the effects of these unlawful practices are eliminated including a written rescission of the unlawful procedure with notice to the UFT and all members of the relevant bargaining unit of HOPS for the City of New York. ~o u. => u. .... (.) w 0.. (I) w et: !!2 w U) -< (.) z 0 i:::: 0 ::E No Respondent opposes the petition and cross-moves to dismiss pursuant to CPLR §3211 [a][3], [5], for lack of standing and as time-barred. [* 2] -~ Petitioner Is President of the United Federation of Teachers, AFL-CIO (UFT}, an employee organization within the meaning of Civil Service Law §201 [5] as well as a voluntary unincorporated association operating pursuant to the General Associations Law. UFT represents and Is the exclusive collective bargaining representative for Hearing Officers (per session) hereinafter referred to as 11 HOPS 1 " employed by the City of New York as was certified In September of 2007. There Is currently no agreement In place between the City and the UFT on behalf of Its members. In 2008, the Environmental Control Board (ECB) tribunal was consolldated Into OATH. During the summer of 2011, the Health Tribunal which included the HOPS was consolidated Into OATH. Prior to consolidation the Health Tribunal had the HOPS render decisions sustaining or dismissing charges In notices of violation autonomously, without any review. On November 16, 2011 and November 22, 2011, after the consolldatlon of the health tribunal, the OATH Managing Attorney Issued directives requiring the HOPS to submit all full dlsmlssal decisions for supervisory review prior to Issuance. Petitioner seeks a declaration that the policy instituted by the respondents requiring HOPS In the bargaining unit represented by UFT assigned to OATH to submit decisions and see the Managing Attorney, prior to dismissal of any Notice of Violation In Its entirety, is arbitrary and capricious, In error of law, ultra vlres and In violation of the Rules of the City of New York (RCNY). Petitioner claims that It has standing because it has authority to act on behalf of HOPS as a certified collective bargaining representative and If one or more members has standing, UFT has standing. Petitioner also claims It has standing because Injury to HOPS is within the zone of Interest and Is sufficiently related to Its organlzatlonal purpose. Pursuant to 24 RCNY §7 .11 [I], HOPS are given authority to render their own autonomous decision, a provision that has been in effect for many years before the consolldatlon. Respondents directives seeking to enforce OATH procedure as stated In 48 RCNY §3-57, place HOPS In the position of vlolatlng them and being deemed 11 lnsubordinate" by OATH, alternatively observing the directives and violating relevant existing statutory provisions. Petitioner claims this action is timely and not barred by the statute of limitations because It has been commenced within four months of the respondent's November 15, 2011 and November 22, 2011, directives. Respondents seek to dismiss this proceeding clalmlng petitioner lacks standing because this action Involves office management and training, which is outside the scope of collective bargaining. Petitioner is only seeking to protect the publlc appearing at tribunals and not the HOPS. Alternatively, respondents claim that petitioner la relying on conjecture and falls to provide any evidence that a hearing officer has been Improperly told to change a decision or punished for failure to abide by the directive. Respondents seek to dismiss the petition as time-barred because the relevant four month statute of !Imitations has expired. Respondents claim this action is time-barred because the supervisory review of decisions. has taken place at OATH since approximately 2007, as part of the ECB tribunal with no objection from the petitioner. The Health Tribunal was consolidated Into OATH during the summer of 2011, and from that point In time ECB oversight and policies apply to HOPS, as additional counterparts. The standard of review In an Article 78 proceeding, is for the Court to determine whether an administrative decision was arbitrary and capricious or made In error of law (Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Serva., 77 N.Y. 2d 753, 573 N.E. 2d 562, 570 N.Y.S. 2d 474 [1991]). An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and Is [* 3] not arbitrary and capricious (Matter of.Pell v. Board of Education, 34 N.Y. 2d 222, 358 N.Y.S. 2d 833, 313 N.E. 2d 321 [1974]) .. A motion to dismiss pursuant to CPLR §3211 [a][3], Is based on lack of capacity to sue. The two-part test to determine standing In challenglng governmental action requires (1) a showing that the indlvldual will be actually harmed by administrative action, and the harm is more than conjectural and (2) that the Injury falls within the "zone of interests or concerns sought to be protected by the statutory provision under which this agency has acted," Roberts v. Health & Hospltals Corp., 87 A.O. 3d 311, 928 N.Y.S. 2d 236 [N.Y.A.D. 1 ¢t Dept., 2011], quoting from New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y. 3d 207, 810 N.E. 2d 405, 778 N.Y.S. 2d 123 [2004]). A past practice cannot be unilaterally modified by a public employer. Past practice is not a contractual right Independent of an express source (Matter of Aeneas McDonald Pollce Benevolent Assn. v. City of Geneva, 92 N.Y. 2d 328, 703 N.E. 2d 745, 680 N.Y.S. 2d 887 [1998]). The test for associational and organlzatlonal standing requires a demonstration that, "(1) some or all of the members tiave standing to sue (2) that the interests advanced In the case are sufflclently related to UFT's organizational purposes to satisfy the court that LIFT Is an appropriate representative of those Interests and (3) that the participation of the Individual members is not required to assert a claim or to afford the UFT complete rellef'(Mulgrew v. Board of Educ. Of the City School Dist. Of the City of New York, 75 A.O. 3d 412, 906 N.Y.S. 2d 9 [N.Y.A.D. 1 ¢t Dept., 2010]). 24 RCNY §7 .11 [i], tltled Department of Health and Mental Hygiene, Hearings and Mall Adjudications, states, "A written decision sustaining or dismissing each charge in the notice of violation shall be promptly rendered by the decision examiner who presided over the hearing, or who conducted the adjudication by mall, or who rendered a default decision ... Where a violation Is sustained, the hearing officer shall impose a penalty. A copy of the decision, other than a default decision shall be mailed ... shall be served forthwith on the respondent or the respondent's counsel ... " 48 RCNY §3-57, tltled Office of Administrative Trlals and Hearings (OATH), Decisions provides, "As soon as possible after the conclusion of the hearing, the hearing officer shall prepare a recommended decision and order... The recommended decision and order shall be flied with the executive director and served on all parties." Pursuant to CPLR §3211 [a][5], an action may be dismissed based on a specific claim that, 11 the cause of action may not be maintained because of ... collateral estoppel ... res judlcata, statute of limitations .... " Pursuant to CPLR §217[1], A proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding. This abbreviated time frame ls said to serve publlc pollcy by freeing government operations from the cloud of potentlal lltlgatlon. The statute begins to run from when a final and binding decision la rendered that Inflicts injury and may not be prevented or ameliorated by further action (Best Payphones, Inc. v. Department of Information, Technology and Communications of the City of New York, 5 N.Y. 3d 30, 832 N.E. 2d 38, 799 N.Y.S. 2d 182 [2005]). The four month statute of limitations period runs from receipt of the adverse determination (Matter of Rocco v. Kelly, 20 A.O. 3d 384, 799 N.Y.S. 2d 469 [N.Y.A.D. 1 ¢t Dept., 2005]; Matter of Yarbough v. Franco, 95 N.Y. 2d 342, 717 N.Y.S. 2d 19, 740 N.E. 2d 224 [2000]). The statute of limitations cannot be circumvented (In re Long Island Power Authority Ratepayer Litigation, 47 A.D.3d 899, 850 N.Y.S.2d 609 [N.Y.A.D. 2nd Dept., 2008]). [* 4] ¢ Upon review of all the papers submitted this Court finds that respondents' directives seeking to have HOPS dismissals reviewed by a managing attorney, do not have a rational basis and are arbitrary and capricious. Pursuant to 24 RCNY §7 .11 [I], HOPS are given authority to render their own autonomous decision. OATH procedure as stated In 48 RCNY §3-57 requires that a hearing officer prepare a decision as a "recommendation," to be flied with the executive director. The Mayor's Committee on Consolldatlon of Administrative Tribunals Report and Recommendations dated June 7, 2011, (Respondents' Reply Memorandum, Appendix, p. 38) refers 24 RCNY §7.11 and states, 11 Thls section continues In effect as a rule of OATH." It does not state that 24 RCNY §7 .11, or any of Its subsections were deemed superseded or replaced, or that exceptions should be made, as Indicated for other subsections of Title 24 of the RCNY. Respondents directives are seeking to enforce OATH procedure as stated In 48 RCNY §3-57 and replace 24 RCNY §7 .11 [i], or re-interpret the Intent of the Mayor's Committee on Consolidation of Administrative Tribunals Report and Recommendations. Petitioner has standing, the UFT represents the Interests of Its HOPS members and is acting within Its capacity as their agent, which does not require Individual members to come forward. The concerns Involved are within the "zone of interest. Respondents' managing attorney's directives have an immediate impact on HOPS, as they render decisions. Petitioner has established that this action Is tlmely because it has been commenced within four months of Respondents' November 15, 2011 and November 22, 2011, directives. Accordingly, it Is ORDERED, ADJUDGED AND DECLARED, that the petition is granted, and the policy Instituted by tile respondents requiring HOPS who are assigned to the Health Tribunal at OATH, to submit dismissal decisions and see the Managing Attorney, prior to dismissal of any Notice of Violation in its entirety Is Irrational arbitrary and capricious, and It Is further, ORDERED, ADJUDGED, AND DECLARED, that respondents directives dated November 15, 2011 and November 22, 2011, requiring HOPS to submit decisions and see the Managing Attorney, prior to dismissal of any Notice of Violation is in violation of 24 RCNY §7 .11 [i], and respondents shall refrain from further seeking to enforce those directives, and it is further, ORDERED, ADJUDGED, and DECLARED, that respondents shall take affirmative action to ensure the effects of the November 15, 2011 and November 22, 2011 directives are eliminated, Including a written reclsalon of the unlawful procedure with notice to the UFT and all members of the relevant bargaining unit of HOPS, and It la further, ORDERED and ADJUDGED, tha~ the cross-motion to dismiss the petition pursuant to CPLR §3211 [a][3], [5], for lack of'standlng and as time-barred, Is denied. ENTER: Dated: September 12, 2012 MANlJEt J. MENDEZ, J.S.C. D NON-FINAL DISPOSITION 0 DO NOT POST D REFERENCE Check one: X FINAL DISPOSITION heck if appropriate: MANUEL J. MENDEZ J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.