In the Matter of Gregory Floyd, Respondent,v.City of New York, et al., Appellants. (And Ten Other Proceedings.)BriefN.Y.September 11, 2014To be Argued by: HARRY GREENBERG (Time Requested: 30 Minutes) New York County Clerk’s Index Nos. 102673/12 102605/12, 102601/12, 102447/12, 102602/12, 102603/12, 102604/12, 102607/12, 102608/12, 102636/12, and 102606/12 Court of Appeals of the State of New York In the Matter of the Application of GREGORY FLOYD, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of JOHN T. AHERN, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – THE CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— (For Continuation of Caption See Reverse Side of Cover) BRIEF FOR PETITIONERS-RESPONDENTS JOHN T. AHERN, SEAN FITZPATRICK, STEPHEN MELISH, JOSEPH COLANGELO and AUGUSTINO MARTINIELLO GREENBERG BURZICHELLI GREENBERG, P.C. Attorneys for Petitioners-Respondents John T. Ahern, Sean Fitzpatrick, Stephen Melish, Joseph Colangelo and Augustino Martiniello 3000 Marcus Avenue, Suite 1W7 Lake Success, New York 11042 Tel.: (516) 570-4343 Fax: (516) 570-4348 Date Completed: January 8, 2014 Index No. 102605/12 Index No. 102673/12 In the Matter of the Application of LILLIAN ROBERTS, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of GENE DEMARTINO, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of TOM KLEIN, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— (Caption Continued on Next Page) Index No. 102447/12 Index No. 102602/12 Index No. 102601/12 In the Matter of the Application of MICHAEL BILELLO, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of SEAN FITZPATRICK, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of STEPHEN MELISH, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of JOSEPH COLANGELO, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— (Caption Continued on Next Page) Index No. 102607/12 Index No. 102608/12 Index No. 102604/12 Index No. 102603/12 In the Matter of the Application of JOHN MURPHY, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – CITY OF NEW YORK, et al., Respondents-Appellants. ————————————————————— In the Matter of the Application of AUGUSTINO MARTINIELLO, etc., et al., Petitioners-Respondents, For an Order and Judgment Pursuant to Article 78 of the CPLR, – against – THE CITY OF NEW YORK, et al., Respondents-Appellants. Index No. 102606/12 Index No. 102636/12 i TABLE OF CONTENTS Page COUNTER-STATEMENT OF QUESTIONS PRESENTED .................... 1 PRELIMINARY STATEMENT ................................................................. 1 STATEMENT OF FACTS .......................................................................... 5 ARGUMENT POINT I THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION’S DECISION TO ANNUL THE PERSONNEL ORDERS ........................ 11 A. Appellants Failed to Comply with the Procedures Mandated in Civil Service Law Section 20 ............................................................ 11 B. Even if the Lower Court Erred in Concluding That the City Failed to Follow CSL § 20, it Nevertheless Properly Annulled the Personnel Orders Because The City Improperly Violated Labor Law § 220(8-d) and Nullify Binding Collective Bargaining Agreements ........................................................................................ 21 C. Corrigan Has Been Overruled Legislatively and Should be Affirmatively Overturned by this Court ............................................ 31 CONCLUSION ............................................................................................ 34 ii TABLE OF AUTHORITIES Page(s) Cases: Ass’n. of Surrogates and Supreme Court Reporters v. State of New York, 79 N.Y.39 (1992) ...................................................................................... 26 Auguti v. City Civ. Serv. Comm=n, 9 Misc. 2d 349 (Sup. Ct., N.Y. Cty. 1957) ....................................................................... 13 Austin v. City of New York, 258 N.Y. 113 (1932) ..................................... 22 Borrell v. Genesee County, 73 A.D.2d 386 (4th Dept. 1980) ..................... 14 Bucci v. Vill. of Port Chester, 22 N.Y. 2d 195 (1968) ................................ 22, 26 Buffalo Bldg. Trades Council of Buffalo Bd. of Ed. Emp. by Blair v. Board of Ed. of City of Buffalo, 350 N.Y.S.2d 252 (4th Dept. 1973) ...... 32 Burri v. Kern, 180 Misc. 74 (Sup. Ct., N.Y. Cty.), aff=d, 266 A.D. 841 (1st Dep=t 1943), aff=d, 291 N.Y. 776 (1944) ........................................... 13 Burri v. Kern, 39 N.Y.S.2d 640 (Sup. Ct. N.Y. Cty. 1943) ......................... 15 Calavano v. New York City Health & Hospitals Corp., 246 A.D.2d 317 (1st Dept. 1998) ........................................................................................ 27 Casey v. Catherwood, 28 N.Y.2d 702 ......................................................... 31 Caslin v. Nassau Cty. Civ. Svc. Comm’n, 2011 WL 3235988 (N.Y. Sup. Ct. Nassau Cty. July 21, 2011) .............................................. 15 Cayuga-Onondaga Counties Bd. of Co-op. Educ. Services v. Sweeney, 89 N.Y.2d 395 (1996) .............................................................................. 22, 32 Corrigan v. Joseph, 304 N.Y. 172 (1952) .................................................... passim CSEA v. PERB, 248 A.D.2d 882 (3rd Dept. 1998) ..................................... 29, 30 Evans v. Newman, 100 Misc.2d 207 (N.Y. Sup. Ct., Albany County 1979) aff’d 71 A.D.2d 240 (3rd Dept. 1979) ........................................... 29, 30 iii Joyce v. Ortiz, 108 A.D.2d 158 (1st Dept. 1985) ........................................ 15 Martin v. Hennessy, 147 A.D.2d 800 (3rd Dept. 1989) .............................. 14 Matter of Board of Educ. v. PERB, 75 N.Y.2d 660 (1990) ......................... 23 Matter of Broidrick v. Lindsay, 39 N.Y.2d 641 .......................................... 24, 29 Matter of Citizens for Orderly Energy Policy v. Cuomo, 78 N.Y.2d 398 .......................................................................................... 24 Rapp v. Carey, 44 N.Y.2d 157 (1978) ......................................................... 23, 24, 29 Servomation Corp. v. State Tax Comm'n, 51 N.Y.2d 608 (1980)............... 14 Trager v. Kampe, 99 N.Y.2d 361 (2003) ..................................................... 15 Under 21 v. City of New York, 65 N.Y.2d 344 ........................................... 23-24 Weiss v. City of New York, 95 N.Y.2d 1 (2000) ........................................ 14 Wright v. State of New York, 223 N.Y. 44 (1918) ..................................... 31 Statutes: Civil Service Law § 11 (1909) ..................................................................... 14 Civil Service Law § 20................................................................................. passim Civil Service Law § 20(1) ............................................................................ 4, 15, 17 Civil Service Law § 20(2) ............................................................................ passim Civil Service Law § 209-a(1)(e) .................................................................. 9, 28 CPLR § 7803(3) ........................................................................................... 3, 10 Labor Law § 220 .......................................................................................... passim Labor Law § 220(3) ..................................................................................... 31 Labor Law § 220(8-d) .................................................................................. passim iv Other Authority: Governor’s Bill Jacket, Laws of 1960, Ch. 73, Explanatory Memorandum of the State Civil Service Department ...................................................... 18 Governor’s Memorandum, Governor’s Bill Jacket for L. 1976, Ch. 933 ...................................................................................................... 18, 32 Office of Attorney General Formal Opinion No. 98-F3, 1998 N.Y. Op. Atty. Gen. 8 ...................................................................... 16 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the Appellate Division properly affirm the lower court’s decision concluding that Appellants’ extensive Personnel Orders were in violation of and Civil Service Law § 20 in that Appellants failed to provide notice, conduct a public hearing, and obtain approval of the New York State Civil Service Commission before implementation? Petitioners-Respondents respectfully submit that the answer is yes. 2. Did the lower court properly hold that Appellants’ rule modifications and Personnel Orders abrogated binding collective bargaining agreements, and were therefore arbitrary and capricious? Petitioners-Respondents respectfully submit that the answer is yes. 3. Did the lower court properly annul Appellants’ reclassification plan as arbitrary and capricious where no rational basis existed for the plan? Petitioner-Respondents respectfully submit that the answer is yes. PRELIMINARY STATEMENT This appeal was consolidated and includes 11 different actions. This law firm represents the Petitioners-Respondents in five of the 11 actions before this Court. We submit this brief on behalf of Fitzpatrick et al. (Index No. 102604/2012); Ahern et al. (Index No. 102605/2012); Martiniello et al. (Index No. 102606/2012); Melish et al. (Index No. 102607/2012); and Colangelo et al. (Index 2 No. 102608/2012) (collectively referred to as “the Unions” or “Petitioners”).1 The facts applicable to each of the aforementioned Unions are largely the same. To the extent there are any relevant differences they will be noted throughout the brief and throughout the record. On or about April 11, 2012 Respondent-Appellant, DCAS, adopted a resolution, without notice to the Unions, reclassifying the aforementioned titles from Labor Law § 220 prevailing rate employees to graded titles. Thereafter, Appellants promulgated Mayor’s Personnel Order No. 2012/1 and 2012/2 (also referred to as the “reclassification plan”) which altered the wages and supplements and leave regulations for new hires. These Orders and amendments, taken collectively, fundamentally and dramatically changed how affected employees’ compensation and benefits were to be determined, in addition to effectuating wholesale changes in their actual compensation. The lower court granted the Union’s Article 78 petition in its June 29, 2012 decision annulling Personnel Orders No. 2012/1 and 2012/2 signed April 10, 2012 and effective April 11, 2012. In making its determination the trial court assessed whether the City’s reclassification plan was made unilaterally in an arbitrary and capricious manner violative of New York State Civil Service Law § 20 and Labor 1 This appeal is consolidated with six other appeals with index numbers: 102601/12, 102447/12, 102602/12, 102603/12, 102673/12 and 102636/12. We respectfully refer the Court to briefs submitted by those Petitioners-Respondents for facts and discussion concerning those proceedings. 3 Law § 220(8-d). The trial court recognized that Appellants’ Personnel Orders implemented sweeping changes and reclassified thousands of the City’s workers. The lower court properly annulled the City’s reclassification plan concluding it was arbitrary and capricious, within the meaning of CPLR § 7803(3), because it violated New York State Civil Service Law § 20 and New York State Labor Law § 220(8-d). The City subsequently appealed the trial court’s decision but the Appellate Division unanimously affirmed it explaining the City’s reclassification plan was subject to the “procedures mandated by Civil Service Law § 20, i.e., notice, a public hearing, and approval by the State Civil Service Commission, which are applicable to those rules…” (R.2 2820). While the City’s reclassification plan was rife with fatal problems the First Department confirmed that its most fundamental problem was that the City failed to comply with the procedural requirements of New York State Civil Service Law § 20. Pursuant to Civil Service Law § 20, civil service personnel rules, including the Personnel Rules and Regulations of the City of New York at issue herein “and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a 2 The notation “R. #” shall refer to the page number of the record on appeal. Although this brief is submitted for five different Petitioners (see supra at 2–3), Petitioners-Respondents will cite to the portion of the record pertaining to Fitzpatrick Petitioners 102604/2012. 4 summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof.” CSL § 20(1). Once the public hearing is completed, “any modifications” of the rules must be approved by the New York State Civil Service Commission. Id. The City failed to abide by these requirements, and therefore its Personnel Orders are invalid. The plan suffers from other substantive problems because the rule modifications and Personnel Orders contravene New York State Labor Law § 220(8-d) which provides, in pertinent part, as follows: [I]n a city of one million or more, where a majority of laborers, workmen or mechanics in a particular civil service title are members of an employee organization which has been certified or recognized to represent them pursuant to the provisions of article fourteen of the civil service law or local law enacted thereunder, the public employer and such employee organization shall in good faith negotiate and enter into a written agreement with respect to the wages and supplements of the laborers, workmen or mechanics in the title. If the parties fail to achieve an agreement, only the employee organization shall be authorized to file a single verified complaint pursuant to subdivision seven herein, on behalf of the laborers, workmen or mechanics so represented…3 Petitioners are covered by Labor Law § 220(8-d) and Appellants may not disregard the rights and protections afforded by § 220(8-d). Appellants’ application of pay plans to new hires, rather than the applicable Consent Determinations4 abrogates 3 The “fiscal officer” described in subdivision seven is the New York City Comptroller. 4 Local 246 entered into agreements known as “Indentures” on behalf of Tractor Operators and Motor Grader Operators. Such agreements have the same force and effect as collectively 5 the parties’ bargained for agreements. In accordance with Labor Law § 220 (8-d), the Unions and the City have entered into a series of Consent Determinations with Appendix A and Non-Economic Agreements (collectively referred to as “Consent Determinations,” “collective bargaining agreement” or “CBA”) setting forth wages, benefits, and other terms and conditions of employment for civil service titles represented by the Union. The Consent Determinations cover both current and future employees and remain in effect until they are superseded by successor Consent Determinations. The City’s unilateral decision to disregard these binding agreements as though they did not exist was irrational and arbitrary and capricious. For all of the reasons set forth below, this Court should affirm the Appellate Division’s decision in its entirety. STATEMENT OF FACTS Fitzpatrick Petitioners-Respondents are a group of Electrician’s Helpers, Communication Electricians, Electricians, Supervisor Communication Electricians, Supervisor Electricians, and Senior Supervisor Communication Electricians, Supervisor of Mechanics, and Senior Stationary Engineer (Electric), represented by Local Union No. 3 I.B.E.W., AFL-CIO. bargained agreements. Throughout this Petition any reference to “Consent Determinations” should be interpreted to include the Indentures Local 246 has with the City. 6 Ahern Petitioners-Respondents are a group of Oilers, Plant Maintainers, Stationary Engineers (Steam), and Senior Stationary Engineers (Steam), represented by Local Union No. 30, International Union of Operating Engineers, I.U.O.E. Martiniello Petitioners-Respondents are a group of Welders, Welders (Electric), Oilers, Plant Maintainer/Oilers, High Pressure Boiler Operators, Tractor Operators, Motor Grader Operators, and Gasoline Roller Engineers, represented by Local Union No. 15, International Union of Operating Engineers, I.U.O.E.5 Melish Petitioners-Respondents are a group of Painters, Supervisor Painters, Glaziers, Supervisor Glaziers, Bridge Painters, and Supervisor Bridge Painters, represented by Local Union No. 1969, Civil Service Employees, District Council 9, I.U.P.A.T., AFL-CIO and Structural Steel and Bridge Painters of Greater New York, Local Union 806, District Council 9, I.U.P.A.T. AFL-CIO. Colangelo Petitioners-Respondents are a group of Auto Machinists, Auto Mechanics, Auto Mechanics (Diesel), Carriage Upholsterers, Door Check Repairers, Door Stop Maintainers, Electricians (Automobile), Letterer and Sign Painters, Machinists, Machinist’s Helpers, Rubber Tire Repairers, Sheet Metal Workers, Supervisor Door Check Repairers, Supervisor Door Stop Maintainers, 5 Local 15 holds a joint certificate to bargain with Local Union No. 30 for the titles of Oiler and Plant Maintainer/Oiler. Local 15 also holds a joint certificate to bargain with Local Union No. 246 for the titles Tractor Operator and Motor Grader Operator. 7 Supervisor Sheet Metal Workers, Motor Grade Operators, and Tractor Operators, represented by Local Union No. 246, S.E.I.U., Local 246. Respondents-Appellants are the City of New York, Mayor Michael R. Bloomberg,6 Office of Labor Relations Commissioner James Hanley, the New York City Department of Citywide Administrative Services (“DCAS”), DCAS Commissioner Edna Wells Handy, and DCAS Deputy Commissioner James Hein (collectively referred to as “the City” or “Appellants”). On April 11, 2012 Appellants unilaterally imposed a plan reclassifying public employees in skilled trades titles outside the purview of Labor Law § 220, imposing drastically reduced wages, completely eliminating certain benefits, and diminishing other long-standing terms and conditions of employment. This massive reclassification altered a system that had been in place for over a century whereby wages and benefits were determined in accordance with prevailing rates, as determined by the New York City Comptroller, pursuant to Section 220 of the New York State Labor Law. Appellants implemented these changes to a 100-year- old system by “cover of night” without notifying the Unions, bargaining with the Unions, conducting a public hearing, or soliciting any input from any of the Unions or the public whatsoever. 6 Mayor Michael R. Bloomberg was succeeded by Mayor Bill de Blasio on January 1, 2014. 8 Specifically, these eleventh-hour changes imposed by Appellants delete titles represented by the Unions from the Civil Service Competitive Class heading SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassify these titles under different pay plans. In addition, the changes subject new hires to unilaterally imposed pay grades at rates which will not be paid in accordance with Comptroller’s Consent Determinations but rather will be unilaterally subjected to the Mayor’s graded range of salaries. Furthermore, new hires will be granted leave pursuant to the leave regulations for the newly created Maintenance and Operations Services Employees instead of in accordance with the terms of the Comptroller’s Consent Determination. Finally, the changes alter the wages afforded incumbent employees represented by the Union. These employees will no longer have wages set by New York City Comptroller’s Consent Determinations. Before April 11, 2012, the City and the Unions had entered into written agreements, referred to as “Consent Determinations,” establishing covered employees’ wages, benefits, and other terms and conditions of employment in accordance with Labor Law § 220. These Consent Determinations, and the terms thereof, remain in full force and effect until a successor agreement is reached (CSL § 209-a(1)(e)). Nevertheless, the City purported to discard agreed upon Consent Determinations, their attached Appendix A, and the Non-Economic Agreement 9 which incorporated the terms of the Consent Determinations by reference, with the adoption of Mayor Executive Orders 2012/1 and 2012/2. One of the Executive Orders replaced covered employees’ hourly wages with annual salary ranges (R. 1614). The other Executive Order diminished the benefits, annual leave, sick leave, and other long-standing terms of employment for covered titles (R. 1622). These Orders and amendments fundamentally change how affected employees’ compensation and benefits are determined, in addition to effectuating wholesale changes in these employees’ actual compensation. It is these dramatic changes which constitute a reclassification subject to the notice and public hearing requirement laid out in Section 20 of the Civil Service Law. The Unions were able to obtain a temporary restraining order (R. 1481) preventing the City from implementing the Personnel Orders. If not for the Union’s TRO application, Appellants planned to delete titles represented by Petitioners from the Civil Service Competitive Class heading SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassify these titles under different pay plans. Appellants’ actions disregarded their obligations under the Consent Determinations and corresponding documents: Appendix A and the Non-Economic Agreement, imposing drastic wage and benefit reductions for the Union’s members. Under the Executive Orders, employees who are hired or promoted into covered titles will immediately be subjected to these less favorable terms. The 10 Executive Orders purport to “grandfather” in incumbent employees by allowing them to initially receive the same terms and conditions that they received prior to April 11, 2012. However, the Executive Orders provide that the City will bargain with the Unions over incumbent employees’ terms and conditions of employment within a salary range pre-determined by the City, presumably not subject to bargaining, and based on other less favorable terms set by the Executive Orders. Under the Executive Order, future bargaining will no longer be covered by Labor Law § 220. The City’s actions were arbitrary and capricious within the meaning of CPLR § 7803(3) in that they violated CSL Section 20 and Labor Law Section 220(8-d). Based upon the foregoing and following oral argument, the trial court ruled in favor of the Unions granting the petition and annulling the City’s sweeping and unlawful reclassification plan. Following the submission of additional papers and oral argument before the Appellate Division, the First Department unanimously affirmed the lower court’s ruling, rejecting the City’s arguments. The City now appeals the First Department’s unanimous opinion. 11 ARGUMENT POINT I THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION’S DECISION TO ANNUL THE PERSONNEL ORDERS A. Appellants Failed to Comply with the Procedures Mandated in Civil Service Law Section 20 This court should affirm the decision of the Supreme Court and the unanimous decision of the First Department invalidating the City’s Personnel Orders because they run afoul of the plain language in Civil Service Law § 20. Appellants were engaged in reclassification when they amended New York City Personnel Rule X and modified the City’s Civil Service rules removing approximately 10,000 employees from their prevailing rate titles and placing them instead into career and salary plan titles. These sweeping changes required notice, hearing, and approval by the New York State Civil Service Commission pursuant to Civil Service Law § 20. The City’s failure to comply with CSL § 20 and subsequent implementation of the Personnel Orders lacked a rational basis. Section 20(2) provides in no uncertain terms: [R]ules and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof…” 12 The City’s failure to follow the procedures in CSL § 20 was arbitrary and capricious. The requirements of Section 20 are straightforward. A local civil service commission or personnel director cannot adopt or modify local Civil Service rules without first holding a Apublic hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose therefore.@ In addition, any changes to the Civil Service rules or plan Ashall be valid and take effect only upon approval of the . . . state civil service commission@ and filing of the approved changes with the Secretary of State. Civil Service Law ' 20(2). Here, the City admittedly has not performed any of these required steps before reclassifying 10,000 of its employees. Appellants modified DCAS’s rules and adopted new DCAS rules without complying with the procedures articulated in the statute. The DCAS Commissioner stated as follows: The classification of the Classified Service of the City of New York is hereby amended, effective April 11, 2012, under the headings and rules and under the pay plans indicated below, and with the salary grades indicated in the classification resolution, as follows: I. By deleting from the Competitive Class, under Rule X, the heading the SKILLED CRAFTSMAN AND OPERATIVE SERVICE [038] and reclassifying the titles thereunder as indicated herein. (emphasis added). 13 (R. 1607-1608). The City’s actions amending, deleting and reclassifying Petitioners-Respondents constitutes a modification of Rule X triggering the strictures of CSL §20 are applicable. The reclassification of prevailing rate titles to career and salary plan titles is a modification of the City=s Civil Service rules that is invalid if not done in conformance with the procedural requirements of Civil Service Law ' 20(2). Auguti v. City Civ. Serv. Comm=n, 9 Misc. 2d 349 (Sup. Ct., N.Y. Cty. 1957). In Auguti, the City tried to reclassify the title of Climber and Pruner, which was listed in Part 38 of the City=s Civil Service classification plan, consisting of competitive class titles whose compensation is determined in accordance with Section 220. The Court held that the reclassification was not effective until approved by the State Civil Service Commission and that the affected employees remained prevailing rate employees until such time. 9 Misc.2d, at 351–52. The establishment of grades or modification of existing grades Ais a species of classification@ and therefore subject to the procedural requirements of the Civil Service Law, including the Abasic and substantial@ requirement that the changes be approved by the State Civil Service Commission. Burri v. Kern, 180 Misc. 74 (Sup. Ct., N.Y. Cty.), aff=d, 266 A.D. 841 (1st Dep=t 1943), aff=d, 291 N.Y. 776 (1944). 14 Appellants flagrantly disregarded the procedural requirements of CSL § 20 (2). “It is well settled that ‘[a]n administrative agency cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature.’” Martin v. Hennessy, 147 A.D.2d 800, 810 (3rd Dept. 1989) (holding that an agency resolution reclassifying employees without following the procedural requirements of CSL § 20 was invalid) (quoting Servomation Corp. v. State Tax Comm'n, 51 N.Y.2d 608, 612(1980); see Weiss v. City of New York, 95 N.Y.2d 1, 4-5 (2000)(“It is a fundamental principle of administrative law that an agency cannot promulgate rules or regulations that contravene the will of the Legislature…If an agency rule or regulation is ‘out of harmony’ with an applicable statute, the statute must prevail.”). The lower courts’ decision to annul the reclassification plan for failing to comply with CSL § 20 should therefore be affirmed. The lower courts’ determinations are amply supported by court precedent. In Corrigan v. Joseph, the New York Court of Appeals determined that the New York City Municipal Civil Service Commission’s decision to reclassify civil service employees from ungraded to graded pay classifications was invalid until the procedural requirements of CSL § 11 (1909), the precursor to CSL § 20 (2), had been satisfied. 304 N.Y. 172, 185 (1952). In Borrell v. Genesee County, 73 A.D.2d 386, 390 (4th Dept. 1980) the court determined that a decision by a county Civil Service Commission to place a civil service employee into a lower pay grade 15 was an invalid reclassification of that employee because the Civil Service Commission has failed to comply with CSL § 20(2). See Burri v. Kern, 39 N.Y.S.2d 640, 644 (Sup. Ct. N.Y. Cty. 1943) (holding that the reclassification of civil service employees’ pay grades was invalid without the approval of the New York State Civil Service Commission); see also Trager v. Kampe, 99 N.Y.2d 361, 365 (2003) (holding that a county Civil Service Commission’s decision to change the residency requirement for a civil service position was invalid because it failed to comply with CSL § 20(2)); Joyce v. Ortiz, 108 A.D.2d 158, 164 (1st Dept. 1985) (holding that a resolution by the Personnel Director of the New York City Department of Personnel reclassifying a position from the competitive to the noncompetitive or exempt class was invalid for failing to comply with CSL § 20(2); Caslin v. Nassau Cty. Civ. Svc. Comm’n, 2011 WL 3235988 (N.Y. Sup. Ct. Nassau Cty. July 21, 2011) (holding that changes to civil service examination requirements were invalid for failing to comply with CSL § 20(2)). As described in the plain language of the statute, jurisdictional classifications are simply one example of the types of rules which are subject to the § 20 notice, hearing, and Civil Service Commission approval. Civil Service Law § 20(1) “authorized municipal civil service commissions to ‘prescribe, amend and enforce’ rules to give effect to the Constitution and Civil Service Law, including, among other things, rules for the jurisdictional classification of the offices of the 16 municipal civil service.” Office of Attorney General Formal Opinion No. 98-F3, 1998 N.Y. Op. Atty. Gen. 8. See also R. 42. Rather, CSL § 20 makes clear that any rule change by a municipal civil service commission or city personnel office is subject to the procedural requirements. Appellants continue to ignore the plain language in § 20 where “jurisdictional classification” is one example of the type of rule changes covered not the only rule change covered by CSL § 20. The City fails to offer any explanation or justification for its continued belief that § 20 only applies to jurisdictional classification changes and not other rule changes. Appellants’ assessment that Petitioners “are merely in titles that are now ‘graded’” misses the mark. The City’s characterization of their actions as grading not subject to the strictures of CSL § 20 is not supported by the plain language of the statute or the case law. As the trial court properly pointed out, more than “mere” grading has occurred. That is, beyond the placement of Petitioners- Respondents in the career and salary plan in graded positions with maximum and minimum salaries, the City also substantially altered time and leave provisions and contributions to Welfare and Retiree funds. R. 44. The City must abide by the procedures articulated in Section 20 before it can revamp all of the prevailing rate titles and institute such drastic rule changes. 17 Moreover, Appellants’ reliance on the limiting language in § 20(1), which was added as part of a 1960 amendment to § 20, does not save Appellants’ reclassification plan. Section 20(1) provides: Nothing is this chapter or any or law shall be construed to require that positions in the competitive class be specifically named or listed in such rules, or that the salary grade to which a position in any jurisdictional class is allocated be specified in such rules. The statute exempts the City from the task of listing job titles and salary amounts in its rules and regulations. It does not in any way exempt the City from abiding by CSL § 20 when making wholesale restructurings of its classification system. This provision merely permits civil service commissions to exclude competitive class civil service titles and salary grade information in their rules. The elimination of Petitioners’ Part 38 classification from DCAS’s Rules and reclassification of Part 38 employees to new, graded, classifications plainly modified the DCAS Rules and, as such, triggered the procedural requirements of CSL § 20(2). Beyond this the legislative history makes it clear that the exemption in § 20(1) was not intended to exclude the type of reclassification plan at issue here. An Explanatory Memorandum attached to the Bill Jacket for the 1960 amendment provides that the enactment was intended to relieve municipal civil service commissions from obtaining State Civil Service Commission approval for routine, non-controversial changes to job titles and salary grades which were overwhelming 18 the SCSC. The explanatory memorandum accompanying the bill explains, “There is no worthwhile purpose served in listing competitive class job titles in the rules. The prescribing of standard titles for competitive class positions is purely an administrative matter and not one that should require the promulgation and amendment of rules.” Governor’s Bill Jacket, Laws of 1960, Ch. 73, Explanatory Memorandum of the State Civil Service Department, at 7. Further, Appellants acknowledge that the New York State Legislature passed an early version of L.L. §220(8-d) in 1971, which was vetoed by then- Governor Nelson Rockefeller on the grounds that it would “overrule the holding in the Corrigan case.” Governor’s Memorandum, Governor’s Bill Jacket for L. 1976, Ch. 933. The bill was later reintroduced in a subsequent legislative session, was passed, and signed into law by then-Governor Hugh Carey. In his statement approving the bill Governor Carey explained: In approving this bill, I am mindful of the Court of Appeals decision in Corrigan v. Joseph (305 NY 172) which held that municipal employees in graded positions in the competitive class of the Civil Service may not have their wages determined by the prevailing wage formula and the procedure described in Section 220 of the Labor Law. I am advised by officials of the City of New York that workmen, laborers and mechanics employed by the City in particular Civil Service titles, to be covered by the provisions of this bill, occupy ungraded titles. Laws of 1976, Ch. 933, Governor’s Memorandum on Legislative Bills Approved. Therefore, neither the legislature nor Governor Carey, stated that Corrigan was still 19 good law in New York City after this amendment. On the contrary, since the titles at issue were already ungraded, the amendment would have no immediate effect on their coverage under L.L. § 220 because these titles were already covered by L.L. § 220. However, if the titles in New York City were ever graded, they would still be covered by L.L. §220 because (8-d) overruled Corrigan. Simply put, L.L. § 220(8- d) creates an obligation to negotiate regarding wages and supplements and entitles these Petitioners-Respondents to the prevailing rate of wages irrespective of whether the title are graded. Further, the Memo explained that “Obviously the rules [in CSL § 20(2)] were designed to cover matters that are truly legislative in character rather than pronouncements of a routine administrative nature.” Id. Appellant’s reclassification plan is not a “pronouncement of a routine administrative nature.” Appellants did not effectuate simple changes. Instead, Appellants changed the entire method by which the wages and benefits of approximately 10,000 public employees in approximately 107 titles are determined. Breaking more than 100 years of precedent, Appellants also declared that they would cease bargaining with dozens of certified labor unions pursuant to Labor Law § 220(8-d), seize the authority to determine those employees’ wage rates (in the absence of a negotiated agreement) from the New York City Comptroller, and terminate the requirement that those wage rates be established in accordance with § 220. These actions 20 represent a dramatic policy shift that is “legislative in character,” and that cannot be shielded from the public hearing and State Civil Service Commission oversight requirements of CSL § 20(2). Appellants’ reliance on legislative history confirms that while “there is no purpose in having the State review and approve salary grades or changes to…titles,” (Appellants’ Brief, at 23), there is a unquestionable purpose in allowing affected parties to be heard where significant changes in the rules are proposed. The Personnel Orders adopted by Appellants on April 11, 2012, purporting to reclassify the City=s prevailing rate employees to career and salary plan employees are null and void in part because the procedural requirements of CSL § 20 were ignored. The City did not issue the required notice. The City did not hold the required hearing. And the Civil Service Commission has not approved the changes. Appellants’ reclassification goes to the heart of the Civil Service protections, and cannot be analogized to a title change from Traffic Control Agent to Traffic Enforcement Agent, or a $500 increase in salary range. Appellants changes are monumental and trigger the procedures of CSL § 20. For all of the foregoing reasons this Court should affirm the lower courts’ rulings annulling the Personnel Orders. 21 B. Even if the Lower Court Erred in Concluding That the City Failed to Follow CSL § 20, it Nevertheless Properly Annulled the Personnel Orders Because The City Improperly Violated Labor Law § 220(8-d) and Nullify Binding Collective Bargaining Agreements This Court should affirm the trial court’s decision to annul the Personnel Orders on the ground that the City did not follow the procedural guidelines in Civil Service Law § 20. However, even if this Court does not adopt the lower court’s analysis of CSL § 20, it should nevertheless strike down the Personnel Orders on other grounds. The lower court explained that the City’s unilateral actions altering salary and benefits including time and leave had no rational basis. This Court should strike down the Personnel Orders because they resulted in a repudiation of agreements entered validly pursuant to § 220(8-d) of the Labor Law. These agreements made up of the Consent Determination, Appendix A, and the Non- Economic Agreement (collectively referred to as “Consent Determination,” “collective bargaining agreement,” or “CBA”) set forth binding wages, benefits, and other terms and conditions of employment and are effective until they are superseded by a successor Consent Determination. The City’s Personnel Orders repudiated their obligations under the CBA and implemented diminished terms of employment for at least newly hired or promoted employees. By implementing the Personnel Orders the City declared that it would no longer bargain with the Unions under Labor Law § 220. 22 For more than a century prior to the implementation of the Personnel Orders Petitioners bargained with the City for wages and supplements on behalf of their members pursuant to § 220(8-d) of the Labor Law. Labor Law § 220, in accordance with Article I, §17 of the New York State Constitution, requires that workers performing public work be paid at “prevailing” rates that are commensurate with those paid to workers performing similar work in the same locality. (Labor Law § 220(3)(a)). Labor Law § 220 “has been characterized as ‘an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen, and mechanics.’” Cayuga- Onondaga Counties Bd. of Co-op. Educ. Services v. Sweeney, 89 N.Y.2d 395, 402 (1996) (quoting Austin v. City of New York, 258 N.Y. 113, 117 (1932)) (emphasis in original); see Bucci v. Vill. of Port Chester, 22 N.Y. 2d 195, 201 (1968). For this reason, the New York Court of Appeals has instructed that the law “must be construed with the liberality needed to carry out its beneficent purposes.” Bucci, 22 N.Y.2d at 201. Labor Law § 220(8-d) provides: Notwithstanding any inconsistent provision of this chapter or of any other law, in a city of one million or more, where a majority of laborers, workmen or mechanics in a particular civil service title are members of an employee organization which has been certified or recognized to represent them pursuant to the provisions of article fourteen of the civil service law or a local law enacted thereunder, the public employer and such employee organization shall in good faith negotiate and enter into a written agreement with respect to the wages 23 and supplements of the laborers, workmen or mechanics in the title. If the parties fail to achieve an agreement, only the employee organization shall be authorized to file a single verified complaint pursuant to subdivision seven herein, on behalf of the laborers, workmen or mechanics so represented. . . . Any order, compromise, or settlement determining the issues raised upon such a proceeding, which has not been taken up for review by the employee organization, shall be binding upon the laborers, workmen or mechanics represented by the employee organization.7 The enactment of Labor Law § 220(8-d) reinforces New York State’s “strong and sweeping policy” in favor of collective bargaining. Matter of Board of Educ. v. PERB, 75 N.Y.2d 660, 667 (1990). Section 220(8-d) includes language that the parties “shall in good faith negotiate…” wages and supplements. Therefore, § 220(8-d) creates an obligation to negotiate regarding wages and supplements. The mandatory language of the statute evinces the clear and explicit directive to the parties that they must bargain in good faith. The Mayoral Orders at issue here stand in stark contrast to the explicit provisions of New York Labor Law § 220(8-d). If permitted to stand, the Mayor’s Orders would divest Petitioners of their statutory rights, a power the Mayor does not possess. Rapp v. Carey, 44 N.Y.2d 157 (1978) (executive acts which go beyond and or are not embraced by the stated legislative policy are invalid). The principle of separation of powers requires that no one branch of government be allowed to arrogate unto itself powers residing entirely in another branch. Under 7 The “fiscal officer” described in subdivision seven is the New York City Comptroller. 24 21 v. City of New York, 65 N.Y.2d 344, 356. In determining whether executive action crosses the line and constitutes an improper assumption of legislative power, courts look to whether the executive action creates a different policy, not embraced in the legislation or whether the executive action is in fact inconsistent with existing state law. Matter of Broidrick v. Lindsay, 39 N.Y.2d, 641, 646-648; see also, Matter of Citizens for Orderly Energy Policy v. Cuomo, 78 N.Y.2d 398, 410 (executive acts inconsistent with the Legislature’s prerogatives violate the separation of powers doctrine). Here, the Mayor’s Orders purport to explicitly override the provisions of New York Labor Law § 220. Absent any legislative authority whatsoever, the Mayoral Orders at issue would strip Petitioners of their right to prevailing wages. In addition, Petitioners would no longer have the right, as provided in § 220(8-d), to present a single complaint to the New York City Comptroller for final determination of a titles’ wages and supplemental benefits. The Mayoral Orders here would render provisions of § 220 a nullity, a power the Mayor does not possess. Matter of Broidrick v. Lindsay, 39 NY2d, 641; Rapp v. Carey, 44 NY2d 157. On April 11, 2012, Appellants issued the DCAS Determination and the Executive Orders, which, together, (a) declared that the City would no longer pay employees hired or promoted into titles covered by the Consent Determinations on 25 or after April 11, 2012 in accordance with prevailing rates under Labor Law § 220 and would no longer bargain with the Unions over those rates under Labor Law § 220(8-d), (b) implemented a graded pay plan and other terms and conditions for employees hired or promoted into those titles on or after April 11, 2012 that are less favorable than the bargained-for terms in the Consent Determinations, and (c) declared that the City would no longer bargain with the Unions over the terms of employment for incumbent employees in those titles under Labor Law § 220(8-d), but would instead bargain with the Unions based on the diminished terms created for newly hired or promoted employees. The DCAS Determination and the Executive Orders, therefore, directly contradicted the explicit terms of the Consent Determinations and the protections afforded by § 220(8-d). Appellants’ decision to implement the April 11, 2012 reclassification plan repudiated the Consent Determinations in effect at the time, and, in doing so, violated its obligation under Labor Law § 220(8-d) to “in good faith negotiate and enter into a written agreement with respect to the wages and supplements of the” employees in civil service titles represented by the Union. The City shirked its obligations pursuant to Labor Law § 220(8-d), declaring it would no longer bargain with the Unions or pay bargaining unit members prevailing wages and benefits, Appellants’ decision was contrary to the purpose of Labor Law § 220, which, as the Court of Appeals has explained, “has as its entire aim the protection of 26 workingmen against being induced, or obliged, to accept wages below the prevailing rate from a public employer.” Bucci, 22 N.Y. 2d at 201. Appellants endeavored to put aside legally and legitimately negotiated terms and conditions of employment for Petitioners-Respondents represented members. The Unions have entered into Consent Determinations with the City of New York. These Consent Determinations detail wages, hours and other terms and conditions of employment. Critically, each Consent Determination provides: “[t]he foregoing basic rates of wages and supplemental benefits are due and payable to each and every Employee of the City of New York, et al., serving in the above referenced titles beginning as of the effective date of the complaint filed herein, and shall be applicable to all employees of the City of New York, et al., serving on the above- referenced titles.” Although the covered period of the Consent Determinations has ended, these agreements nevertheless remain in full force and effect pursuant to CSL § 209-a(1)(e). Such agreements remain in effect even when they expire until they are superseded by successor agreements. Ass’n. of Surrogates and Supreme Court Reporters v. State of New York, 79 N.Y.39, 45 (1992). Each of the Consent Determinations described above are contracts which memorialize the outcome of bilateral negotiations voluntarily undertaken by the City and Petitioners as an alternative to the statutory resolution procedure under Labor Law § 220 which would result in a Comptroller’s Determination of the 27 Prevailing Wage Rate for the affected titles. The wages and supplemental benefits of Prevailing Rate titles were negotiated, not imposed, and the City actively and fairly participated in the negotiations on these mandatory subjects of bargaining. This Court should reject Appellants’ unsupportable claim that they have a “managerial” prerogative to renounce their obligations under the Consent Determination, since this is contrary to the long-recognized public policy favoring the enforcement of settlement agreements. Calavano v. New York City Health & Hospitals Corp., 246 A.D.2d 317, 318 (1st Dept. 1998). In the Consent Determinations, the Union agreed to release the City from certain claims that it might have against it, in exchange for the City’s express agreement to pay the Union’s members at certain wage and benefit rates. If, as the City claims, it nevertheless reserved the right to unilaterally alter those wage and benefit rates at any time by reclassifying them into graded pay classifications, then the City’s promise to the Union when it executed the Consent Determinations was illusory. If the Consent Determinations are to have any meaning, they can only be interpreted to prevent the type of unilateral action that the City attempted when it implemented the reclassification plan. Beyond this, Appellants’ point to Corrigan v. Joseph, in an attempt to justify their actions. (Appellants’ Brief at 13). In Corrigan, the Court of Appeals held that employees in graded pay classifications could not seek payment of prevailing rates, 28 as payment of such rates would be inconsistent with the goal of basing graded employees’ pay on their merit and fitness. Id. at 182. The Court did not hold, as Appellants contend, that a public employer has the unfettered right to unilaterally remove employees in ungraded titles from the coverage of L.L. § 220. Labor Law § 220(8-d) and Civil Service Law § 209-a(1)(e) , issued well after Corrigan, make the City’s actions wholly unsupportable. Namely LL § 220(8-d) directs that the City and the Unions bargain in good faith over binding wage and benefit agreements. CSL § 209-a(1)(e) maintains the status quo when Consent Determinations expire until a new agreement can be reached. Therefore, the City’s reliance on Corrigan is misplaced. Moreover, the continuation of the terms of the expired Consent Determinations is supported by the clear language of the Consent Determinations themselves. Several of the Consent Determinations at issue herein were executed a few years after the agreed upon duration of the Consent Determination. These Determinations contain wage rates and supplemental benefit accrual rates that both parties have continued to honor until the parties reach a successor agreement or the Comptroller’s Final Determination is upheld through an appeals process Here, the Mayor’s Orders purport to explicitly override the provisions of New York Labor Law § 220 et seq. Absent any legislative authority whatsoever, the Mayoral Orders at issue would strip Petitioners of their right to prevailing 29 wages. In addition, Petitioners would no longer have the right, as provided in § 220(8-d), to present a single complaint to the New York City Comptroller for final determination of a titles’ wages and supplemental benefits. The Mayoral Orders at issue here would render provisions of Labor Law § 220 a nullity, a power the Mayor does not possess. Matter of Broidrick v. Lindsay, 39 N.Y.2d 641; Rapp v. Carey, 44 NY2d 157. As such, Petitioners are covered by L.L. § 220 as a matter of law, even if their titles are graded. Moreover, the cases Appellants cite referencing grading are distinguishable. Appellants’ reliance on Evans v. Newman, 100 Misc.2d 207 (N.Y. Sup. Ct., Albany County 1979) aff’d 71 A.D.2d 240 (3rd Dept. 1979) is misplaced. In Evans, the courts addressed the state-wide unification of the court system pursuant to specific legislation. 100 Misc.2d at 210. In the case at bar, there was no legislative action and there is no attempt to unify any operations that were previously decentralized. On the contrary, the matter at issue herein deals with unilateral action by the executive of a single municipality without either legislative authority or any operational justification. Therefore, the City’s efforts to liken Evans to the facts at hand fail. Appellants also cite CSEA v. PERB, in an attempt to support their unilateral decision to trample bargained for contractual benefits. 248 A.D.2d 882 (3rd Dept. 1998). CSEA is also distinguishable and cannot support the City’s bold claims. 30 First, like in Evans, the grading in CSEA was preceded by specific legislative action. The County legislature approved a request to upgrade titles of physical and occupational therapists employed by the County “resulting in 12 or 24 therapists being placed in pay groups that were outside the bargaining unit…” 248 A.D.2d at 883. No such legislative action was present in the instant matter. Rather, here, the executive acted in a rogue fashion without any legislative backing. Second, the change in grade allocation resulted in an increase in wages for the affected employees and their removal from the bargaining unit, which again is not the case in the instant matter. Appellants instead trampled on bargained for agreements, diminishing Union members’ rights. The CSEA case does not lend support for the unilateral reduction in salary and benefits by an executive without legislative approval. Appellants acted unilaterally to effectuate changes of mandatory subjects of bargaining which the Union did not have a chance to bargain over and have not agreed to during bargaining. The facts presented and the issues decided in the CSEA matter are wholly inapplicable to Appellants’ actions. For all of the foregoing reasons Appellants’ actions were arbitrary and capricious in that they lacked a rational basis and are not supported by the relevant statutory authority or case law. This Court should affirm the lower courts’ decision annulling DCAS’ Determination and the Executive Orders. 31 C. Corrigan Has Been Overruled Legislatively and Should be Affirmatively Overturned by this Court In 1894 the New York State Legislature enacted what is now Labor Law Section 220 providing that the “wages to be paid for a legal day’s work, as hereinbefore defined, to laborers, workmen, or mechanics upon [any] public works, shall be not less than the prevailing rate of wages as hereinafter defined.” Labor Law § 220(3). This Court then found Section 220 applicable to all public employees. Wright v. State of New York, 223 N.Y. 44, 47 (1918). Thereafter, over vigorous dissent this Court pronounced that graded employees were exempt from Section 220 requirements. In Corrigan the Court held that any other policy “is one to be made by legislative action, not by judicial process.” In 1971 the Court revisited the issue reaffirming that employees in graded civil service positions were exempt from the prevailing wage rate statute. Casey v. Catherwood, 28 N.Y.2d 702, 703. The State Senate and Assembly then took action passing Bill Number 6173-A. This bill would have amended Labor Law § 220 to allow an employee organization to proceed on behalf of its members to file a complaint with Comptroller for investigation and determination of prevailing rates of wages. However, Governor Rockefeller vetoed the bill explaining this “measure would be construed to overrule the holding of the Corrigan case and should, therefore be disapproved.” Governor’s Veto Jacket, 32 Laws of 1971, Veto No. 305. Four years later the Court of appeals reaffirmed the rule in Buffalo Bldg. Trades Council of Buffalo Bd. of Ed. Emp. by Blair v. Board of Ed. of City of Buffalo, 350 N.Y.S.2d 252 (4th Dept. 1973), but in 1976 Governor Carey signed a bill into law overruling Corrigan. Notably the Division of Budget explained: In a landmark case (Corrigan v. Joseph, 304 N.Y. 172 (1952)) employees in “graded” positions in the civil service are relegated to whatever remedies are available to them in the Civil Service Law; they do not have recourse to the prevailing wage provision of the Labor Law. The present measure appears to be a “back door” attempt to apply the prevailing wage provision of the Labor Law to the graded salary plan provisions of the Civil Service Law… Governor’s Bill Jacket, Law of 1976, Ch. 933. The amendment is codified as Labor Law § 220(8-d). Since § 220(8-d) was enacted the Court has not reaffirmed Corrigan but instead has refused to extend the exemption. Cayuga-Onondaga Counties BOCES v. Sweeney, 89 N.Y. 2d 395 (1996). Corrigan has thus been overruled and within New York City employers must “in good faith negotiate and enter into a written agreement with respect to the wages and supplements of the laborers, workmen, or mechanics in the title,” and if the “parties fail to achieve an agreement,” the employee organization may file a complaint with the Comptroller that the public employer is not paying prevailing wages, whether or not the employees are in a “graded” status. Labor Law § 220(8-d). 33 For the aforementioned reasons this Court should affirm the unanimous decision of the First Department annulling DCAS’ Determination and the Executive Orders. CONCLUSION For all of the foregoing reasons this Court should affirm the Supreme Court's June 29, 2012 decision and judgment granting Petitioners-Respondents Article 7 8 petition, and dismissing Appellants' appeal. Dated: January 8, 2014 Lake Success, New York eenberg Genevieve E. Peeples Greenberg Burzichelli Greenberg, P.C. Attorneys for Petitioners-Respondents 3000 Marcus A venue, Suite 1 W7 Lake Success, New York 11042 (516) 570-4343 34