In the Matter of Patrolmen's Benevolent Association of the City of New York, Inc., et al., Appellants,v.City of New York, et al., Respondents.BriefN.Y.October 27, 2015 TO BE ARGUED BY: Ronald G. Dunn COURT OF APPEALS NO. APL-2014-00205 TIME REQUESTED: 20 MINUTES State of New York Court of Appeals ________________ In the Matter of the Application of THE PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of itself and POLICE OFFICER JOSEPH ANTHONY, POLICE OFFICER BRIAN MCGUCKIN, POLICE OFFICER MICHAEL HERNANDEZ, and all Delegates and Police Officers Assigned to the precincts within the “Bronx Patrol Borough”, Petitioners-Appellants, - against - THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT and RAYMOND W. KELLY, in his official capacity as the Commissioner of THE NEW YORK CITY POLICE DEPARTMENT, Respondents-Respondents. BRIEF OF PETITIONERS-APPELLANTS GLEASON DUNN WALSH & O’SHEA Attorneys for Petitioners-Appellants 40 Beaver Street Albany, New York 12207 (518) 432-7511 Of Counsel, Ronald G. Dunn, Esq. Supreme Court, New York County, Index No. 113039/11 i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................iii CORPORATE DISCLOSURE STATEMENT ........................................................ vi QUESTIONS PRESENTED...................................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 6 THE SUPREME COURT DECISION .................................................................... 11 APPELLATE DIVISION DECISION .................................................................... 12 PRIOR COURT OF APPEALS PROCEEDINGS .................................................. 13 STATUTES INVOLVED ........................................................................................ 13 LEGAL ARGUMENT ............................................................................................. 15 POINT I THE SUPREME COURT DID NOT ABUSE ITS DISCRETION ............................................................................................... 15 A. The Standard on Review.......................................................................... 15 B. The Supreme Court Did Not Abuse Its Discretion in Finding That the Injunction was Necessary to Preserve the Efficacy of an Arbitration Award ...................................... 16 POINT II CPLR §6301 STANDARDS DO NOT APPLY TO APPLICATIONS FOR INJUNCTION UNDER CPLR §7502(c) ......................................................................................................... 19 ii A. The Plain Language of CPLR Article 75 Excludes a Merit Based Inquiry ................................................................................ 20 B. The Appellate Division Erred in Deciding the Ultimate Merit Questions Involved in the Arbitration ........................... 23 POINT III EVEN IF CPLR ARTICLE 63 STANDARDS APPLIES, THE SUPREME COURT DID NOT ABUSE ITS DISCRETION AND THE APPELLATE DIVISION ERRED, UNDER THE GUISE OF ANALYZING THE LIKELIHOOD OF SUCCESS ELEMENT, IN DECIDING THE ULTIMATE QUESTION IN VIOLATION OF CPLR § 7502 .................................................................... 26 1. The Supreme Court’s Finding of the PBA’s Likelihood of Success Supports the Preliminary Injunction .................................................................. 26 2. The Supreme Court Did Not Abuse Its Discretion in Finding Irreparable Harm ......................................... 34 3. The Supreme Court Did Not Abuse Its Discretion in Finding that the Balance of the Equities Tip in the PBA’s Favor .................................................... 35 CONCLUSION ........................................................................................................ 36 PRINTING SPECIFICATIONS STATEMENT ..................................................... 37 APPENDIX iii TABLE OF AUTHORITIES Cases Borenstein v Rochel Props., 176 AD2d 171 (1st Dept 1991) ................................. 15 Cogswell v Merrill Lynch, 78 F3d 474 (10th Cir. 1996) ......................................... 29 Colon v City of New York, 60 NY2d 78 (1983) ....................................................... 33 Corso v Creighton Univ., 731 F2d 529 (8th Cir. 1984) .......................................... 30 Cove v Rosenblatt, 148 AD2d 411 (2d Dept. 1989) ................................................ 18 DC 37 v Office of Mun. Labor Relations, 29 OCB 16 (1982) ................................. 28 Destiny Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212 (4th Dept 2009) ............................................................................ 15 Doe v Axelrod, 73 NY2d 748 (1988) ....................................................................... 15 Erber v Catalyst Trading LLC, 303 AD2d 165 (1st Dept 2003) ............................. 21 Four Times Sq. Assoc. v Cigna Invs., 306 AD2d 4 (1st Dept 2003) ....................... 26 Interoil LNG Holdings, Inc. v Merrill Lynch PNG LNG Corp., 60 AD3d 403 (1st Dept 2009) ................................................................................................... 21 Jenkins v City of New York, 2 AD3d 291 (1st Dept 2003) ...................................... 33 Jiggetts v Perales, 202 AD2d 341 (1st Dept 1994) ................................................. 15 Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942 (2d Dept 2009) ................... 15 Matter of Aaron J., 80 NY2d 402 (1992) ................................................................ 23 Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 (2d Dept 2008) ..................................................................... 22 iv Matter of Guarini (Severini), 233 AD2d 196 (1st Dept 1996) ................................ 20 Matter of Longo v Dolce, 192 AD2d 157 (2d Dept 1993) ................................ 33, 34 Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91 (1975) ................................................................................. 24, 27, 32 Matter of Wilaka Constr. Co. (New York City Hous. Auth.), 17 NY2d 195 (1966) ............................................................................... 24, 27, 32 National Telecom. Assn. v National Communications Assn., 189 AD2d 573 (1st Dept 1993) .......................................................................... 20 Oakgrove Constr., Inc. v Genesee Val. Nurseries, Inc., 39 AD3d 1283 (4th Dept 2007) ................................................................................................... 29 Parkmed Co. v Pro-Life Counselling, 91 AD2d 551 (1st Dept 1982) .................... 27 Parochial Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 (1983) .......... 22 Patrolmen’s Benevolent Assn. v City of New York, 196 Misc. 2d 396 (Sup Ct, NY County. 2003) ................................................................................ 19 Police Benevolent Assn. of the New York State Troopers, Inc. v New York, Sup Ct, Albany County, Dec. 16, 2003, Keegan, J., Index No. 5513-03 ............ 19 Props for Today v Kaplan, 163 AD2d 177 (1st Dept 1990) ................................... 27 SG Cowen Securities Corp. v Messih, 224 F3d 79 (2d Cir. 2000) .......................... 22 Smith Barney, Inc. v Sarver, 108 F3d 92 (6th Cir. 1997) ........................................ 29 State of New York v City of New York, 275 AD2d 740 (2d Dept 2000) .................. 27 Suffolk County Patrolmen’s Benevolent Assn., Inc. v County of Suffolk, 150 AD2d 361 (2d Dept. 1989) .......................................................................... 18 Terex Corp. v Bucyrus Intl. Inc.., 94 AD3d 548 (1st Dept 2012) ........................... 29 Tucker v Toia, 54 AD2d 322 (4th Dept 1976) ................................................... 26, 27 v Vaden v Discover Bank, 556 US 49 (2009) ............................................................. 29 Westchester County Corr. Officers Benevolent Assn. Inc. (County of Westchester), 43 PERB ¶ 4546 (2010) ............................................................... 18 Statutes Civil Service Law § 202 .......................................................................................... 17 CPLR § 5601(a) ......................................................................................................... 1 CPLR § 7501..................................................................................................... passim CPLR § 7502.............................................................................................................. 1 CPLR § 7502 (c) ............................................................................................... passim CPLR §6301................................................................................................... 6, 13, 21 CPLR Article 62 ...................................................................................................... 20 CPLR Article 63 ............................................................................................... passim New York City Collective Bargaining Law § 12-305 ............................................. 18 Other Authorities 22 N.Y. Jur. 2d, Contracts § 254 ............................................................................. 29 McKinney’s Cons. Laws of NY, Book 1, Statutes § 221(b) ................................... 23 McKinney’s Cons. Laws of NY, Book 1, Statutes § 73 .......................................... 22 New York City Mayoral Executive Order No. 75 ................................................. 5, 7 vi CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(f) of the Court’s Rules of Practice, the Petitioner-Appellant, The Patrolmen’s Benevolent Association of the City of New York, Inc., is a domestic not-for-profit corporation that has no parent corporation, subsidiaries or affiliates. 1 QUESTIONS PRESENTED 1. Did the Supreme Court abuse its discretion in granting a preliminary injunction in aid of arbitration? 2. Do the CPLR Article 63 standards for granting preliminary injunctive relief apply in an application pursuant to CPLR § 7502 for provisional relief in aid of arbitration? 3. Even if Article 63 standard applies, did the Appellate Division err, under the guise of analyzing the likelihood of success element, in deciding the ultimate question in the underlying arbitration in violation of CPLR § 7501? PRELIMINARY STATEMENT This brief is submitted on behalf of the Petitioners-Appellants, the Patrolmen’s Benevolent Association of the City of New York, Inc., on behalf of itself and Police Officer Joseph Anthony, Police Officer Brian McGuckin, Police Officer Michael Hernandez (the “Union Representatives”), and all Delegates and Police Officers assigned to precincts within the “Bronx Patrol Borough” (collectively referred to as the “Appellants” or “PBA”) in support of Appellants’ appeal as of right pursuant to CPLR § 5601(a) from an Order of the Appellate Division, First Department (R 551-567),1 which vacated over a two Justice dissent 1 References to the Record on Appeal are made by page number preceded by an R. 2 provisional relief granted by a Decision, Order, and Judgment of the Supreme Court. The Order appealed from vacated a preliminary injunction granted by the Supreme Court in aid of arbitration pursuant to CPLR § 7502 (c) (R 7-18) and dismissed the initial Petition in a special proceeding. This Court granted a stay of the Appellate Division Order with an Order dated September 23, 2014 (R 585-586). SUMMARY OF ARGUMENT Three police officers were elected by their constituents to be their Union Representatives. Pursuant to the applicable collective bargaining agreement, the Union Representatives were entitled to be excused on a full-time basis from their normal duties as police officers in order to carry out joint labor management activities. However, the City unilaterally, and without any attempt at due process, purported to revoke the Union Representatives’ excusal to perform labor management activities, and attempted to return them to their former assignments in their commands. While the City attempted to justify its revocation based upon the Union Representatives being indicted on allegations that they were involved in misconduct relating to the issuance and processing of summonses, the revocation violated the collective bargaining agreement and applicable Mayoral executive 3 order, which do not permit unilateral revocation in these circumstances. The City’s revocation also impermissibly interfered with and subverted the union’s and its members’ right to choose their own representatives. The union and the three officers grieved this subversion of the election and sought and were granted an injunction in aid of the arbitration of the grievance by Supreme Court. Under the terms of the injunction the City’s revocation of the excusals was nullified, and the status quo restored, so that the Union Representatives would remain excused from normal police duties in order to honor their obligations to perform labor management functions. As a result of the injunction, and subsequent stay granted by this Court, in the almost four (4) years period since the indictment, with the exception of a 30-day suspension in 2011 following the issuance of administrative charges, the Union Representatives have been on full duty status and excused from normal police functions in order to perform joint labor management activities, without any incident, while the underlying action is pending. The Appellate Division, however, in a 3-2 decision, reversed the Supreme Court and vacated the injunction. In doing so, the majority at the Appellate Division made a determination that the applicable clause of the Collective Bargaining Agreement gave to the City the authority to remove these officers as their constituents’ elected representatives. The Appellate Division did so based 4 solely upon the fact of an indictment concerning allegation of interference with processing of traffic tickets and despite 1) the statutory mandate that merits determinations are for the arbitrator; 2) the City has deemed them sufficiently fit and responsible to keep them working on the job as police officers; 3) the City does not object to the officers serving as Union representatives on their own time; and 4) the officers have not been proven to have done anything wrong. The standard of review on an appeal to the Appellate Division from the grant of provisional relief by the Supreme Court is whether the Court below abused its discretion. The Supreme Court properly exercised its discretion in granting a preliminary injunction pursuant to CPLR § 7502 (c) to maintain the status quo pending arbitration of the parties’ dispute. That stay prevented the City of New York from revoking the release time for the Union Representatives pending an arbitration over whether a specific clause in the Collective Bargaining Agreement (the “CBA”) between the City and the PBA gave the City the right to revoke the release time under the circumstances here. The Appellate Division improperly reversed the Supreme Court Decision, Order, and Judgment and ruled on the ultimate merits of the arbitration in violation of CPLR § 7501. The dissent at the Appellate Division observed that the majority erred in deciding the underlying merits in the arbitration and held that the Supreme Court did not abuse its discretion. 5 The Supreme Court granted the injunction. In doing so, it found that the PBA made a sufficient showing, pursuant to both CPLR §§ 7502(c) and 6301 et seq., that a preliminary injunction was warranted to preserve the status quo in order to allow an arbitrator to grant effective relief in the pending grievance (R 8-18). The Court enjoined the City from revoking the Union Representatives’ release time until an arbitrator could determine the underlying issue on the merits, i.e., whether the language of New York City Mayoral Executive Order No. 75 (“EO75”) as incorporated into the CBA empowered the City to revoke the release time of these individuals. The Supreme Court found that the rights of the members to elect their own representative outweighed the City’s interest in dictating who may act as their representative (R 13-14). It also found that the PBA made a sufficient showing of a likelihood of success on the merits to meet the CPLR Article 63 standards. The Supreme Court acted well within its discretion. The Court correctly found that the rights of the PBA members to have a duly-designated representative could not be remedied by a retroactive arbitration award, and that absent an injunction maintaining the status quo, an arbitrator’s award would be rendered ineffectual (R 4-5). In other words, an arbitrator could not retroactively restore the right of the PBA membership to be represented by their duly-designated representatives if the City had already revoked their release time. 6 On appeal, a three Justice majority improperly ruled on the ultimate merits of the grievance holding that the City had the implied right to unilaterally determine if that the Union Representatives did not act in a “responsible manner.” In making that finding, the majority usurped the question for arbitration and in so doing incorrectly interpreted the meaning and intent of the CBA’s inclusion of EO75. The majority also found that a grand jury indictment, standing alone, provided a sufficient factual basis for the City to unilaterally determine that the Union Representatives did not act “responsibly at all times” as that term was intended by the parties when they agreed to include EO75 in the CBA. The Appellate Division made that contract language interpretation without any factual inquiry into the parties’ intent, history of bargaining or other contract language interpretation tools. The two Justice dissent correctly observed that the majority applied the wrong standard of review and incorrectly decided the merits of the underlying dispute. The dissent correctly applied the plain language of CPLR §§ 7501, 7502(c) and §6301 finding that the Supreme Court did not abuse its discretion. STATEMENT OF FACTS The central facts in the case concern release time for the duly-designated Union Representatives. The release time is provided pursuant to the parties’ CBA. Release time was originally granted independently of the CBA by New York City 7 Mayoral Executive Order No. 75 (“EO75”) first issued by Mayor Lindsey in 1973. The parties subsequently agreed to include EO75 in the CBA. EO75 permits the PBA to designate members to serve as elected employee representatives. EO75 provides in applicable part: “Employee representatives, duly designated by certified employee organizations, when acting on matters related only to the interests of employees in their certified bargaining units shall be permitted to perform [certain] functions, subject to the conditions set forth in this Executive Order, without loss of pay or other employee benefits” (R 44 [EO75 § 2]). “While on release time, city employees are permitted to perform various labor-management joint activities, including investigating grievances, participating in meeting of departmental labor-management committees, negotiating with the Commissioner of the Office of Labor Relations (“OLR”) and his representatives, and appearing before departmental and other City officials and agencies” (R 44-45 [EO75 § 2]). Because EO75 is incorporated into the CBA between the City and PBA (R 73 [CBA Article XVII]), a violation of EO75 is a violation of the CBA. The dispute resolution provisions of the CBA end in binding arbitration (R 75-79 [CBA Article XXI]). In June 2011, the Union Representatives were elected by the PBA members to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx (R 25 ¶ 4, 103 ¶¶ 19-21, 159 ¶ 4). In July 2011, the Union 8 Representatives were issued certificates pursuant to EO75 for full time release with pay to perform union duties (R 185-187). On October 25, 2011, the Union Representatives were indicted in connection with their alleged interference with the processing of traffic summonses (see R 191-260, 262-351, 353-478). They have all pled not guilty and that proceeding is ongoing (R 30-31 ¶¶ 34-36, 63 ¶ 34). The Union Representatives remain on the payroll and continue to hold the rank of police officers to this day (R 15). This Court granted a stay keeping the release time in place pending the appeal (R 585-586). On November 3, 2011, the City notified the PBA that it was attempting to revoke the release time authorization of the Union Representatives (R 96). The Union Representatives were each temporarily suspended for thirty days without pay, pursuant to Civil Service Law § 75(3-a), on October 28, 2011 (R 169). They were each on suspension at the time the City sought to rescind their release time authorization. By the time their suspension ended on November 28, 2011 (R 179 ¶ 16), the Supreme Court had granted a temporary restraining order (“TRO”) enjoining the City from revoking their release time authorization (R 509- 510). The TRO remained in effect until the Supreme Court issued its preliminary injunction on December 20, 2011 (R 8-18, 512-528). The Union Representatives 9 were returned to the City payroll on or about November 28, 2011, and each has continued to serve as a PBA representative on full release time (R 585-586). On November 28, 2011, the NYPD informed the Union Representatives that, should the City prevail in revoking their release time authorization, they would be reassigned from their current assignments in the NYPD to other police duties (R 524-525). The City unilaterally sought to revoke the release time of the Union Representatives based solely on the existence of the indictments (R 30 [Petition ¶ 34], 163 [Answer ¶ 34]; see also R 128-129 ¶ 9). According to an argument advanced by the City, one reason it revoked their release time was, “[m]anagement has serious reservations about their ability to, among other things, properly investigate grievances and effectively participate in negotiations” (R 128-129 ¶ 9). However, the City conceded that the Union Representatives can continue to serve as PBA representatives, as long as they do so “on their own time” (R 130 [Affidavit of OLR Commissioner James Hanley ¶ 12]). The City conceded that there is a right to have full release time for the specific areas served by the Union Representatives by offering to have other individuals replace the Union Representatives, albeit not by persons the PBA membership elected (R 128 [Affidavit of OLR Commissioner James Hanley ¶ 7]). 10 On November 14, 2011, the PBA filed a grievance alleging that the City’s acts, in seeking to revoke their full release, violated the CBA (R 489-491). The grievance was denied the following day (R 493). On November 23, 2011, the PBA filed a demand for arbitration of the grievance with the New York City Office of Collective Bargaining, pursuant to Article XXI, section 8 of the CBA (R 483-505). The arbitration hearing for the grievance has not yet been held. The City has not contested the arbitrability of this grievance (R 528) By its terms EO75 allows for the rescission of release time only if one of two events should occur: (1) The representative is engaged in “organizing, planning, directing or participating in any way in work stoppages, or job actions of any kind” (R 48-49 [EO75 § 4(4)]) or (2) The individual ceases to be Union official (R 49 [EO75 §4 (7)]). Neither event occurred here. The City does not argue otherwise. To justify its proposed rescission, the City cited to the general responsibility clause of EO75, which states: “Employees assigned on a full-time or part-time basis or granted leave without pay pursuant to this order shall at all times conduct themselves in a responsible manner.” (R 127, § 4[10]). 11 The City argues that this clause (§ 4[10]) gives it the unfettered right to interpret whether alleged conduct violates this clause and whether a violation authorizes the City to rescind the leave (R 128-129 ¶ 19). That is the precise question before the arbitrator, (i.e., does EO75 § 4[10] as incorporated into the CBA give the City the right to unilaterally determine whether the existence of a grand jury indictment, standing alone, allows the City to revoke Union release time). THE SUPREME COURT DECISION The Supreme Court began its analysis by determining that it was seeking only to preserve the status quo pending the arbitration, i.e., in aid of arbitration, rather than granting the ultimate relief finally determining the rights and liabilities of the parties under EO75. The Court then weighed and applied undisputed facts using both the specific injunction standard in CPLR § 7502 (c) for a preliminary injunction in aid of arbitration and the general preliminary injunction standards under CPLR § 6301, et seq. The Court held: “Petitioners have established a sufficient basis for relief under both the limited inquiry of CPLR §7502(c) and the standards for preliminary injunctive relief of Article 63” (R 12). In doing so, the Court weighed each factual argument raised by both parties and explained its reasoning on all issues (R 12-16). 12 APPELLATE DIVISION DECISION AND ORDER The Appellate Division initially split 2-2, but despite Appellants express objection pursuant to section 600.1(c), a fifth Justice nonetheless was vouched in and cast the deciding vote to reverse without hearing oral argument from Appellants. (R 569-581) The PBA objected on the basis that the Justice had prejudged the case before oral argument and moved to vacate the Decision and Order and it was rescinded. However, despite requesting the re-argument be before a new fifth Justice, the Appellate Division elected to have the re-argument before the same Justice who had previously joined the majority. Not unsurprisingly, the same three Judge majority issued the same Decision and Order, verbatim, with the same two Justice dissent. (R 537-549) The majority Decision held that EO75 gave the City the unilateral right to interpret EO75’s meaning and application and as such the PBA could not prevail in the underlying arbitration (R 541). The majority also held that a grand jury indictment, standing alone, provides a “sufficient basis” for the City to unilaterally rescind the release time based on its unreviewed determination that the three members violated the provision of EO75 requiring that the member “act responsibly” at all times (R 541-543). Thus the majority found the PBA did not and could not show a likelihood of success on the merits and reversed by holding 13 that the PBA did not establish the necessary elements under CPLR § 6301 for an injunction. The two Justice dissent wrote that the Supreme Court did not abuse its discretion in finding an injunction was warranted. The dissent also observed that the majority improperly decided the ultimate question for the arbitrator (R 547- 549). PRIOR COURT OF APPEALS PROCEEDINGS The PBA made an application for a stay of the Decision and Order of the Appellate Division. That application was granted (R 585-586). As such, the Union Representatives remain on full release time. STATUTES INVOLVED § 7501. Effect of arbitration agreement A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute. . . . . . . . . § 7502(C). Application to the Court;…provisional remedies (c) Provisional remedies. The supreme court in the county in which an arbitration is pending or in a county specified in subdivision (a) of this section, may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitration that is 14 pending or that is to be commenced inside or outside this state, whether or not it is subject to the United Nations convention on the recognition and enforcement of foreign arbitral awards, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. The provisions of articles 62 and 63 of this chapter shall apply to the application, including those relating to undertakings and to the time for commencement of an action (arbitration shall be deemed an action for this purpose), except that the sole ground for the granting of the remedy shall be as stated above. If an arbitration is not commenced within thirty days of the granting of the provisional relief, the order granting such relief shall expire and be null and void and costs, including reasonable attorney's fees, awarded to the respondent. The court may reduce or expand this period of time for good cause shown. The form of the application shall be as provided in subdivision (a) of this section. 15 LEGAL ARGUMENT POINT I THE SUPREME COURT DID NOT ABUSE ITS DISCRETION A. The Standard on Review A reviewing Appellate Court may reverse the judgment of the Supreme Court only upon finding that the Supreme Court abused its discretion. This Court has made it clear that: “The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts. Our power to review such decisions is thus limited to determining whether the lower court’s discretionary powers were exceeded or, as a matter of law, abused.” (Doe v Axelrod, 73 NY2d 748, 750 [1988] [internal citation omitted]; see also Jiggetts v Perales, 202 AD2d 341, 342 [1st Dept 1994] [“[T]he decision whether to grant or deny provisional relief is a matter committed to the sound discretion of the trial court.”] [internal citation omitted]). “In the absence of unusual or compelling circumstances, [an appellate] court is reluctant to disturb said determination, unless of course, it can be demonstrated that the court abused its discretion” (Borenstein v Rochel Props., 176 AD2d 171, 172 [1st Dept 1991]; accord Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942, 942 [2d Dept 2009]; see also Destiny Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 216 [4th Dept 2009] [holding that “entitlement to a preliminary injunction ‘depends upon probabilities, 16 any or all of which may be disproven when the action is tried on the merits’” and therefore “‘a motion for a preliminary injunction is addressed to the sound discretion of the trial court[,] and the decision on such motion will not be disturbed on appeal, unless there is a showing of an abuse of discretion.’”] [internal citations omitted]). B. The Supreme Court Did Not Abuse its Discretion in Finding That the Injunction was Necessary to Preserve the Efficacy of an Arbitration Award The Supreme Court correctly found that the PBA satisfied the standard set forth in CPLR § 7502 (c) for an injunction in aid of arbitration because, in the absence of injunctive relief, there was a risk that the arbitration award would be rendered ineffectual. CPLR § 7502(c) provides in applicable part that: “The supreme court in the county in which an arbitration is pending . . . may entertain an application for an order. . . . for a preliminary injunction in connection with an arbitration that is pending . . . but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. The provisions of articles 62 and 63 of this chapter shall apply to the application, including those relating to undertakings and to the time for commencement of an action (arbitration shall be deemed an action for this purpose), except that the sole ground for the granting of the remedy shall be as stated above.” (emphasis added). The Supreme Court expressly found that: “[PBA] sufficiently demonstrated that the loss of Release Time for the Officers would deny many Union members 17 the benefit of those whom they have elected to represent them and injure the Union’s efficient operations. The Union also maintains that it will be injured in its reputation with its membership, as the City’s act is not consistent with the presumption of innocence accorded the Officers. An arbitrator’s award cannot change the past, and the Bronx Union members’ loss of their elected representatives, possibly for months pending resolution of the arbitration, cannot be remedied in the event that the Union is successful at arbitration, thus making any award ineffectual in that regard” (Police Benevolent Assn. of the New York State Troopers, Inc. v. New York, Sup Ct, Albany County, Dec. 16, 2003, Keegan, J., Index No. 5513-03, at 6).” (R 12).2 On this basis, the Supreme Court held that the grant of temporary, provisional relief preventing the City from revoking release time pending arbitration was necessary to preserve the efficacy of any potential arbitration award (R 13). The Appellate Division did not disturb this finding (R541). This factual and legal conclusion is consistent with well-established principles that union members have the right to their duly-designated representatives and that the employer has no role to play in selecting or monitoring that choice. Civil Service Law § 202 grants each public employee union member a statutory right “to form, join and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing” (Civil 2 The unpublished decision is attached in Appendix A. 18 Service Law § 202 [emphasis added]; see also New York City Collective Bargaining Law § 12-305). Thus, “under ordinary circumstances, a union’s choice or appointment of its own representative is an internal union matter that is protected by [the Taylor Law] from employer interference, meddling or control.” (Westchester County Corr. Officers Benevolent Assn. Inc. [County of Westchester], 43 PERB ¶ 4546, 4699 [2010] [internal citations and quotations omitted]). The Supreme Court’s finding is also in line with other cases in which the Court preliminarily enjoined an employer from interfering with a union membership’s right to a representative of their choosing pending arbitration. For instance, in Suffolk County Patrolmen’s Benevolent Assn., Inc. v County of Suffolk, 150 AD2d 361 (2d Dept. 1989), the Second Department affirmed the Supreme Court’s preliminary injunction “restoring the petitioner to his former position in the Suffolk County Police Department pending arbitration” because, in the absence of such provisional relief, it was “possible, if not likely, that his effectiveness in fulfilling his duties as the sole trustee of the Patrolmen’s Benevolent Association, Inc., for his police precinct [would] be undermined, thus rendering ineffectual any award to which he may be entitled” (150 AD2d at 362, citing CPLR § 7502 [c]; see also Cove v Rosenblatt, 148 AD2d 411, 412 [2d Dept. 1989] [enjoining an employer from seeking to recoup money or time for union leave based on the allegation that union representatives exceeded their allotment of release time 19 pending arbitration]; Patrolmen’s Benevolent Assn. v City of New York, 196 Misc. 2d 396, 401 [Sup Ct, NY County. 2003] [finding irreparable injury on application for injunctive relief under Civil Service Law when the City transferred police officer out of his precinct pending union elections); Police Benevolent Assn. of the New York State Troopers, Inc. v New York, Sup Ct, Albany County, Dec. 16, 2003, Keegan, J., Index No. 5513-03). Because this showing that absent an injunction the arbitrator’s award may be rendered ineffectual is all that is required to justify an injunction under CPLR § 7502 (c), the Supreme Court’s grant of an injunction should have been affirmed on this basis alone. POINT II CPLR § 6301 Standards Do Not Apply to Applications for Injunction under CPLR § 7502 (c) The plain language of CPLR § 7502 (c) states that the “sole” basis for granting an injunction in aid of arbitration is a showing that the award of the arbitrator would be rendered ineffectual. Despite that language both the Supreme Court and the Appellate Division held that, in addition to the showing required under CPLR § 7502(c), petitioners were also required to satisfy the standards for an injunction under CPLR Article 63 citing to recent Appellate Division cases that so held (R 14, 541). 20 The Supreme Court ultimately found that the PBA satisfied the Article 63 Standard as well (R 14-15). But the three Justice majority decision of the Appellate Division found that the PBA failed to demonstrate a likelihood of success on the merits and reversed on that ground (R 542-543). Because the plain language of CPLR §7502(c) does not require a showing of compliance with CPLR Article 63 standards, it was error for the Appellate Division to hold that the PBA failed to meet the likelihood of success standard found in Article 63. A. The Plain Language of CPLR Article 75 Excludes a Merit Based Inquiry Pursuant to the plain language of CPLR § 7502 (c), appellate courts have previously held that “the only consideration in deciding whether to grant a preliminary injunction [pursuant to CPLR § 7502(c)] is whether the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief” (Matter of Guarini [Severini], 233 AD2d 196, 196 [1st Dept 1996] [internal quotation and citations omitted]; see also National Telecom. Assn. v National Communications Assn., 189 AD2d 573, 573 [1st Dept 1993]). The plain language of section 7502(c) provides that “the sole ground for the granting of the remedy shall be as stated above,” which is that “the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief.” Section 7502(c) notes that provisions of articles 62 and 63 of the CPLR will apply 21 to the application for provisional relief with regard to matters such as the requirements “relating to undertaking and to the time for commencement of an action….” However, as to the substantive standard of whether such provisional relief is warranted or not, section 7502(c) mandates “that the sole ground for the granting of the remedy shall be as stated above,” i.e., that the arbitration award may be rendered ineffectual without the provisional relief. The statutory language is clear. Any requirement, as some recent decisions have held as noted below, that a petitioning party must also meet the standards set forth under CPLR § 6301 undermines the plain language of CPLR § 7502 (c), as well as squarely contradicts CPLR § 7501, which provides, in part, that “[i]n determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.” Other appellate court decisions, including the Appellate Division in this case, have held that, once the standard of CPLR § 7502 (c) is met, the court should also consider the factors under a CPLR § 6301 analysis (see e.g. Interoil LNG Holdings, Inc. v Merrill Lynch PNG LNG Corp., 60 AD3d 403, 404 [1st Dept 2009]; Erber v Catalyst Trading LLC, 303 AD2d 165, 165 [1st Dept 2003]; Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 22 612, 613 [2d Dept 2008]; see also SG Cowen Securities Corp. v Messih, 224 F3d 79 [2d Cir. 2000]).3 This Court has never addressed this disagreement between the appellate courts. To address this disagreement, we begin, as we must, with the language of CPLR § 7502 (c): “The necessary starting point is the statute itself. A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all of the problems and complications which might arise in the course of its administration.” (Parochial Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 548-49 [1983]; see also McKinney’s Cons. Laws of NY, Book 1, Statutes § 73). CPLR § 7502 (c) plainly states that: “the sole ground for the granting of the remedy should be as stated above.” The referenced language is “the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief” (see CPLR § 7502 [c]). This language explicitly limits the grounds for an injunction. 3 In Cowen, the Circuit Court expressly acknowledged that this Court has not ruled on this important issue (224 F3d at 83 n. 1). 23 Furthermore, CPLR Article 75 begins with the directive that: “In determining any matter arising under this article, the Court shall not consider whether the claim with respect to which arbitration is sought is tenable or otherwise pass upon the merits of the dispute.” (see CPLR § 7501). Under well-established canons of construction, we look to CPLR §§ 7501 and 7502(c) in pari materia to glean statutory intent. “It is the obligation to harmonize the various provisions of related statutes and to construe them in a way that renders them internally compatible.” (Matter of Aaron J., 80 NY2d 402, 409 [1992]; see also McKinney’s Cons. Laws of NY, Book 1, Statutes § 221[b]). Read together, these two provisions make clear that the Legislature created a limited substantive standard for the application for provisional relief preliminary to an arbitration. Specifically, the statutory prohibition in CPLR § 7501 directing that the Court not pass on the underlying merits of arbitration is inconsistent with the CPLR Article 63 standard requiring a showing of a likelihood of success on the merits. B. The Appellate Division Erred in Deciding the Ultimate Merit Question Involved in the Arbitration In fact, the Appellate Division, under the guise of applying the likelihood of success standard, breached the prohibition in CPLR § 7501, i.e., “[i]n determining 24 any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.” But, that is precisely what the Appellate Division majority did. The two dissenting Justices said, “[b]y interpreting this provision, the majority has resolved the very issue that is the subject of the grievance yet to be arbitrated” (R 547). Any requirement that in addition to showing that the arbitration award would be “rendered ineffectual without such provisional relief,” a movant needs to establish “likelihood of success” fundamentally is incongruent with the basic tenant that a court in a controversy involving an arbitration proceeding cannot consider whether the claim is “tenable” or otherwise pass upon the “merits” of the dispute. The plain language of the CPLR § 7502 (c) should not be read otherwise to incorporate into the statute a standard for granting provision relief by borrowing the standard from CPLR Article 63 that is fundamentally inconsistent with the limited role that the Courts have in providing provisional relief in an arbitration context. This Court has held repeatedly that where the parties have agreed to arbitrate it is for the arbitrator, not the Courts, to determine the merits of the case (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91, 95 [1975]; Matter of Wilaka Constr. Co. [New York City Hous. Auth.], 17 NY2d 195, 204 [1966]). 25 The plain language limits of CPLR §§ 7502(c) and 7501 are consistent with these holdings cautioning it is not for the courts to rule on the merits, particularly in the context of provisional proceedings. Even if somehow CPLR §§ 7501 and 7502(c) are read so as to include Article 63, the terms of section 7501 would perforce modify the showing required on a likelihood of success on the merits by prohibiting the Court from intruding into reaching the merits of the arbitration. For this reason as well, it was error for the Appellate Division to even get to the question of whether Appellants made an adequate showing of a likelihood of success on the merits and that error was compounded when in the face of CPLR § 7501 the Appellate Division based its entire decision on its own view of the merits of the underlying question for the arbitrator. As shown below, by reaching the merits, the Appellate Division conflated likelihood of success element, even if it applied, with certainty of success by reaching the merits. 26 POINT III EVEN IF CPLR ARTICLE 63 STANDARDS APPLIES, THE SUPREME COURT DID NOT ABUSE ITS DISCRETION AND THE APPELLATE DIVISION ERRED, UNDER THE GUISE OF ANALYZING THE LIKELIHOOD OF SUCCESS ELEMENT, IN DECIDING THE ULTIMATE QUESTION IN VIOLATION OF CPLR § 7501 A. The Supreme Court Correctly Held that Petitioners Met the Standards for an Injunction under CPLR § 6301 Even if the standards of CPLR Article 63 applies to whether an injunction under CPLR § 7502 (c) can issue, the Supreme Court correctly held that the PBA met them. 1. The Supreme Court’s Finding of the PBA’s Likelihood of Success Supports the Preliminary Injunction The Supreme Court found that the PBA made a prima facie showing of entitlement to relief (R 14-15). In doing so, the Supreme Court correctly relied on settled law that: “[T]he showing of a likelihood of a success on the merits required before a preliminary injunction may be properly issued must not be equated with the showing of a certainty of success. It is enough if the moving party makes a prima facie showing of his right to relief; the actual proving of his case should be left to the full hearing on the merits.” (Tucker v Toia, 54 AD2d 322, 326 [4th Dept 1976] [final emphasis added, internal citation omitted]; accord Four Times Sq. Assoc. v Cigna Invs., 306 AD2d 4, 6 [1st Dept 2003]). Only where an applicant’s position “is without legal foundation” should a request for a preliminary injunction be denied for failure to show a 27 likelihood of success (Tucker, 54 AD2d at 326; see also Props for Today v Kaplan, 163 AD2d 177, 177 [1st Dept 1990]; Parkmed Co. v Pro-Life Counselling, 91 AD2d 551, 553 [1st Dept 1982]). In cases “such as this, where the ‘denial of injunctive relief would render the final judgment ineffectual, the degree of proof required to establish the element of likelihood of success on the merits should be reduced’” (R 14, quoting State of New York v City of New York, 275 AD2d 740, 741 [2d Dept 2000]). These cases are consistent with CPLR § 7501, which explicitly directs that the underlying merits are for the arbitrator not the Court to decide (see also Nationwide Gen. Ins. Co., 37 NY2d at 95; Wilaka Constr. Co., 17 NY2d at 204). In the face of this settled law, the Appellate Division reversed based entirely on its interpretation of the meaning and effect of the language of EO75 (R 541- 542). In other words, the Appellate Division decided the underlying dispute. As an initial matter, as noted above, the Appellate Division’s Decision and Order is inconsistent with CPLR § 7501, which expressly bars the Court to “pass upon the merits of the dispute.” The Appellate Division also incorrectly interprets the underlying agreement based on its own reading of the contract language. Of course the Appellate Division did so without factual inquiry or testimony on the parties’ intent that a contested arbitration would develop. As the Supreme Court and dissenting Justices 28 found and show below, there is been an adequate showing of likelihood of success on the merits. Specifically, in the instant case, the arbitration itself will determine whether EO75—specifically, paragraph 10 of EO75’s section 4—grants the City unfettered discretion to rescind release time certificates granted to duly-elected officials of the PBA based on the City’s belief that the individuals in question may have failed to conduct themselves in a responsible manner (R 50 [EO75 §4(10)], 486). Nothing in the CBA or EO75 permits the City to take such sweeping actions. Pursuant to the CBA and EO75, full time excusals with pay for PBA Trustees and Financial Secretaries to engage in labor-management activities on behalf of PBA members are mandatory upon the request of the employee organization. Specifically, EO75, which is incorporated into the CBA at Article XVII, section 1, provides that, with respect to labor-management joint activities, “[e]mployee representatives, duly designated by certified employee organizations . . . shall be permitted to perform the . . . functions [listed in §2], subject to the conditions set forth in this Executive Order, without loss of pay or other employee benefits” (R 44 [EO75 §2(1)]). Once the bargaining agent has designated a representative, the City’s role in issuing the certificates under EO75 is purely ministerial (see e.g. DC 37 v Office of Mun. Labor Relations, 29 OCB 16 [1982] 29 [“once the release time allocation has been determined, [the City’s] role in channeling release time is basically a ministerial one.”]). EO75 clearly and unambiguously provides for only two circumstances under which release time may be revoked, which are when an employee engages in a strike or work stoppage, or when the union revokes the release time. The City’s reliance on a general provision of EO75 calling for employees to act in a responsible manner for the authority to revoke release time at will is contrary to the plain language of the order. It is hornbook law that where there are general and specific terms, the more specific provision takes precedence over the general (see Oakgrove Constr., Inc. v Genesee Val. Nurseries, Inc., 39 AD3d 1283, 1284 [4th Dept 2007] [“Where there are general and special provisions relating to the same thing, the special provisions control, even if there is an inconsistency between the special provisions and the general provisions”], quoting 22 N.Y. Jur. 2d, Contracts § 254; accord Terex Corp. v Bucyrus Intl. Inc.., 94 AD3d 548, 550 [1st Dept 2012]; Smith Barney, Inc. v Sarver, 108 F3d 92, 96-97 [6th Cir. 1997] [“it is well established under the generally applicable rules governing contract interpretation that specific provisions . . . take precedence over more general provisions”, quoting Cogswell v Merrill Lynch, 78 F3d 474, 480-81 [10th Cir. 1996] [internal citations omitted], abrogated on other grounds by Vaden v Discover Bank, 556 US 49 [2009]; Corso v Creighton 30 Univ., 731 F2d 529, 533 [8th Cir. 1984] [ “It is also axiomatic that where general and specific terms in a contract may relate to the same thing, the more specific provision should control.”] [internal citation omitted]). EO75 specifically sets forth two limited circumstances under which the City may revoke the excusals of duly designated employee representatives: (1) where the employee engages in “[o]rganizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions of any kind…” (R 48 [EO75 § 4(4)]) or (2) “upon the termination of the employee’s official union status” (R 49 [EO75 § 4(7)]). Therefore, pursuant to the plain language of EO75, a union official designated by the bargaining agent must be granted full time excusal from his or her duties in the NYPD unless that official engages in “strikes, work stoppages, or job actions of any kind” or the union terminates their official union status (R 48-49 [EO75 § 4(4), (7)]). The entirety of EO75 concerns labor relations and labor-management activities. Indeed, the only two explicitly stated reasons allowing for rescission of release time both directly address that subject. None of the allegations of improper conduct here concern labor-management joint activities as described in EO75, and, therefore the City had no power to rescind the release time certificates of the Union Representatives. 31 Despite the clear and unambiguous language of EO75 speaking directly to the grounds for release time revocation, the City contends and the Appellate Division held, that it may rescind release certificates, without notice or a hearing, whenever the Commissioner decides that the individual has failed to comply with the “letter or the spirit of Executive Order 75” (R 542-543). For this sweeping grant of authority, the City and Appellate Division relies upon section 4(10) of EO75, which provides: “Employees assigned on a full-time or part-time basis or granted leave without pay pursuant to this Order shall at all times conduct themselves in a responsible manner.” (R 50 [EO75 § 4(10)]). The City’s argument that paragraph 10 is a third “catch all” criteria to revoke release time appears nowhere as such in the four corners of EO75 and runs afoul of the most basic principles of construction. The three Justice majority at the Appellate Division noted that the only “reasonable inference” a court could draw from the inclusion of the responsible conduct clause is that “there are consequences for noncompliance.” That conclusion, made without any factual record or inquiry into the parties’ intended meaning is overreaching, wrong and inconsistent with the limited role of the court. Here, paragraphs 4 and 7 of section 4 of EO75 specifically authorize the City to suspend or terminate an employee’s leave status if the representative 32 engages only in specified types of conduct (i.e., engages in strikes, or ceases to be an elected official), while the general statement requiring responsible conduct of employees on release time in paragraph 10 of EO75 provides no such authority. Accordingly, the specific provisions relating to the power to revoke release time in paragraphs 4 and 7 take precedence over the more general provision in paragraph 10, which is completely silent on any authority to revoke release time. Thus, EO75 § 4(10) does not grant the City any authority to unilaterally revoke release time. The responsible conduct provision imposes an obligation on the employee, irrespective of potential consequences and the City, as the employer, would arguably have authority as an employer to discipline employees for alleged misconduct based on charges and a hearing. However, section 4(10) of EO75 is not a clear and ambiguous grant of authority to the City to revoke release time at its pleasing based on any conduct it views as irresponsible. In these circumstances, it is a question for the arbitrator to decide on a full and contested record what the parties intended this contract clause to mean and what the consequences are for non-compliance. The Appellate Division acted in violation of CPLR § 7501 and the prior decisions of this Court in usurping the arbitrator’s role (see Nationwide Gen. Ins. Co, 37 NY2d at 95; Wilaka Constr. Co., 17 NY2d at 204). The Appellate Division also found, again despite the prohibition of CPLR § 7501 in reaching the underlying merits, that a grand jury indictment, standing 33 alone, is a “sufficient basis for the City to determine that the individual petitioners did not at all times conduct themselves in a responsible manner” (R 543). Whether alleged misconduct in charges by itself is sufficient to revoke the release time under section 4(10) of EO75 is an issue for the arbitrator (see CPLR § 7501). In any case, they are also wrong. To make this finding, the Court cited to two cases standing for the unremarkable and irrelevant proposition that a grand jury indictment bars a subsequent cause of action for malicious prosecution, Colon v City of New York, 60 NY2d 78, 82 (1983) and Jenkins v City of New York, 2 AD3d 291 (1st Dept 2003). Probable cause in the context of pretrial criminal proceedings is wholly different from what consequence an unproven accusation of criminal conduct has in a civil proceeding. Here, the individual officials have pled not guilty, and obviously enjoy the privilege of presumed innocence until proven guilty (Matter of Longo v Dolce, 192 AD2d 157, 162 [2d Dept 1993] [Even a “plea of nolo contendere in a criminal proceeding cannot be relied upon in a subsequent civil or administrative action as proof of the facts alleged in the indictment.”] [emphasis added]) There is no dispute that the City took the action it did based solely on the allegations in an indictment rather than a finding of any kind. This fact establishes that the City’s acts undercut the presumption of innocence and rights to due 34 process that all citizens and public employees enjoy and that are central to what police officers do. Indeed, the indictment proves nothing (see Longo, 192 AD2d at 162). The City did not present any facts to support any claim it may make that the allegations in the indictment are true. The Supreme Court correctly observed that the indictment, standing alone, proves nothing. The actual clause that the City invoked says “Employees….shall at all times conduct themselves in a responsible matter” (R 50 § 4[10]). It does not say that “probable cause” accusing them of irresponsible conduct is the equivalent of a finding that they acted irresponsibly. That is a question for the arbitrator, not the Court (see CPLR § 7501). It was error for the Appellate Division to find otherwise. 2. The Supreme Court Did Not Abuse Its Discretion in Finding Irreparable Harm The Supreme Court’s finding that the PBA would suffer irreparable harm absent injunctive relief was well within the Court’s discretion. As the Court explained, “[PBA] sufficiently demonstrated that the loss of Release Time for the Officers would deny many Union members the benefit of those whom they have elected to represent them and injure the Union’s efficient operations” (R 12). The Court recognized that, “A monetary award . . . cannot undo this type of intangible, but real, injury which involves the representation of Union members in grievances, 35 and other matters, that are undoubtedly of great importance to them” (R 12-13). The Court therefore held that the PBA met its burden of showing irreparable harm, which “exists where an award for monetary damages is not adequate compensation” (R 13). The Appellate Division did not disturb these findings, and there is no basis in the record to do so now (R 541). 3. The Supreme Court Did Not Abuse Its Discretion in Finding That the Balance of the Equities Tip in the PBA’s Favor The Supreme Court did not err in holding that “the equities tip in favor of granting relief that would allow the Union’s unimpeded operations on behalf of its members pending arbitration” (R 15). As explained above, in the absence of preliminary injunctive relief, the PBA and its members would be irreparably harmed. Furthermore, the Union’s authority and integrity would be undermined if the City were permitted to determine who can and cannot serve as union representatives. As the Court explained, “if a union sets out to do union business, and the employer begins to dictate who is in those union roles, we have destroyed the union” (R 525). The City has never made a showing that the equities tip in its favor. This Court has already granted a stay pending this appeal (R 585-586), which continues the equitable balance that has existed for 3 years. CONCLUSION THE SUPREME COURT DID NOT ABUSE ITS DISCRETION IN GRANTING A PRELIMINARY INJUNCTION IN AID OF ARBITRATION F'OR THE SOLE PURPOSE OF MAINTAINING THE STATUS QUO PENDING AN ARBITRATION ON THE MERITS. Dated: January 14,2015 Respectfully submitted, GLEASON, DUNN, WALSH & O'SHEA By G. Esq. Attorneys for Petitioners-Appellants Office and Post Office Address 40 Beaver Street Albany, New York 12207 (s18) 432-7srr Ronald G. Dunn, Esq. Of Counsel Of Counsel: MICFIAEL T. MURRAY, ESQ. Off,rce of the General Counsel of the Patrolmen' s Benevolent Association of the City of New York, Inc. Michael T. Murray Gaurav I. Shah David'W. Morris 36 37 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2010 using Times New Roman 14 pt. for the body and Times New Roman 12 pt. for footnotes. According to the aforementioned processing system, the portions of the brief that must be included in a word count pursuant to 22 N.Y.C.R.R. §600.10(d)(1)(i) contains 8143 words. COURT OF APPEALS NO. APL-2014-00205 State of New York Court of Appeals ________________ In the Matter of the Application of THE PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of itself and POLICE OFFICER JOSEPH ANTHONY, POLICE OFFICER BRIAN MCGUCKIN, POLICE OFFICER MICHAEL HERNANDEZ, and all Delegates and Police Officers Assigned to the precincts within the “Bronx Patrol Borough”, Petitioners-Appellants, - against - THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT and RAYMOND W. KELLY, in his official capacity as the Commissioner of THE NEW YORK CITY POLICE DEPARTMENT, Respondents-Respondents. APPENDIX Supreme Court, New York County, Index No. 113039/11 State of New York Supreme Court COUNTY OF ALBANY THE POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC., TROOPER DON POSTLES and TROOPER GORDON WARNOCK, Albany County Clerk Document Number 9170847 - - Rcvd 02/03/2D043:41 :06 PM- -against- Petitioners, Decision and Judgment Index # 5513-03 RJI # 01030075293 THE STATE OF NEW YORK, DIVISION OF STATE POLICE; THE NEW YORK STATE EXECUTIVE DEPARTMENT, OFFICE OF EMPLOYEE RELATIONS and THE STATE OF NEW YORK, Respondents. (Supreme Court, Albany County, Motion Term) (Justice Thomas W. Keegan, Presiding) APPEARANCES: GLEASON, DUNN, WALSH & O'SHEA \ \IIIII IIIII IIIII Ill~ IIIII IIIII 111111111 \Ill (Mark T. Walsh and Michael P. Ravalli, of Counsel) Attorneys for Petitioners KEEGAN, J.: 102 Hackett Boulevard Albany, New York 12209 HON. ELIOT SPITZER Attorney General of the State of New York (Douglas J. Goglia, of Counsel) Attorneys for Respondents The Capitol Albany, New York 12224 Petitioner Police Benevolent Association of the New York State Troopers, Inc. (PBA), and two of its senior officers, Trooper Don Postles and Trooper Gordon Warnock, are seeking a preliminary injunction pursuant to CPLR 7502(c) in connection with an -2- arbitrable controversy involving the State of New York, Division of State Police (Division) and New York State Governor's Office of Employee Relations (GOER), and the cancellation of previously approved union leave for petitioners Postles and Warnock. Respondents oppose petitioners' request for injunctive relief, and seek to dismiss the petition in its entirety. They argue that petitioners are not entitled to an injunction because they have not met the equitable standards for the granting of such preliminary relief, nor proved that an arbitration award will be rendered ineffectual without such relief. The PBA and the Division are parties to Collective Bargaining Agreements that became effective on April 1, 1991, and by agreement of the parties, continued in effect through March 31, 1999. Since the parties have yet to reach an accord regarding the period subsequent to March 31, 1999, the terms of the expired agreements, other than those that have sunset, or have been modified by arbitration awards, continue in effect pursuant to Civil Service Law §209-a (1) (e). The Collective Bargaining Agreements contain provisions relating to employee organizational leave. Among other forms of employee organizational leave, the Agreements allow GOER to place union members on "full-time union leave," so that they may conduct union business on a full-time basis. Under this provision, the PBA sought full-time union leave for petitioners Postles and Warnock, -3- who are two of their three senior officers. GOER approved such leave for the period of July 4, 2002 through March 31, 2003 by letter. Petitioners Postles and Warnock again requested full-time union leave for 2003-2004. GOER again approved the leave by letter, and identified numerous terms and conditions for the approval detailed of such terms and leave. However, conditions for despite GOER's the approval of explicitly leave for petitioners, there is no reference to any condition concerning who would be delegates of the PBA. Respondents contend that petitioners were required to continue to serve as their respective Troop delegates as a condition of their approved full-time leave, and cancelled the full-time leave on August 31, 2003 shortly after two other Troopers were elected delegates of their respective troops. As a result, Postles and Warnock's approved leave was terminated seven months prior to the agreed upon expiration date. Petitioners filed a grievance under the governing Collective Bargaining Agreements challenging the cancellation of the previously approved leave. Subsequently, petitioners sought, and were granted, a temporary restraining order preserving the status quo. In support of the instant petition, petitioners detail the disruption to the PBA's operation and legislative agenda, and argue that under CPLR 7502(c), the appropriate standard for determining -4- entitlement to a preliminary injunction is solely based on whether the arbitral award will be rendered ineffectual without such provisional relief. Although claiming that the traditional equitable criteria are inapplicable in making this determination, they contend that even if that standard is applied they should prevail. Although there are conflicting decisions among and within the different departments, and there is no relevant caselaw from the Third Department, the First Department recently held that "the criteria for provisional relief set forth in CPLR articles 62 and 63 are not relaxed when such relief is sought in aid of arbitration pursuant to CPLR 7502(c) ."Erber v Catalyst Trading, LLC, 303 AD2d 165. Notably, the statute explicitly incorporates the provisions of Article 63, which has long been deemed to include all of the traditional equity standards for the granting of preliminary injunctive relief. As a consequence, Professor Vincent Alexander submits that once the "ineffectiveness-of-the-award" ground is established, a consideration of the other prerequisites for provisional relief is appropriate. (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7502:6). In this Court's view, petitioners have demonstrated that the ultimate arbitration award may not be effective without preliminary injunctive relief. Contrary to respondents' contention, the interruption to the PBA's daily business operations -5- and its legislative agenda cannot be remedied by an arbitrator's award months in the offing. Having decided thus, the Court must . --now consider whether petitioners have met the traditional equitable criteria for the granting of temporary relief under CPLR article 63. Under CPLR article 63, a preliminary injunction may be granted "when the party seeking such relief demonstrates: ( 1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor (Grant Co. v Srogi, 52 NY2d 496, 517) .n Doe v Axelrod, 73 NY2d 748, 750. While it is true that the administrative discretion of GOER is entitled to great deference, the doctrine of administrative finality requires that once an agency of the government acts in the exercise of its discretion and makes a determination, that determination should not be subject to the whim of the agency, but should be final. Finnegan v McBride, 226 NY 252, 259. Given that GOER first exercised its administrative discretion by granting petitioners Pestles and Warnock full-time union leave for the period of April 1, 2003 to March 31, 2004, and there is no reference in the letters approving such leave to the alleged condition that petitioners Pestles and Warnock were required to continue to serve as their respective Troop delegates, in this Court's view, petitioners have, at least preliminarily, -6- demonstrated a likelihood of success on the merits. In turning to the allegations of irreparable harm, the Court is troubled by the cancellation of previously approved full- time union leave for petitioners Postles and Warnock where the consequence of the interruption of PBA's business operations affects PBA's ability to function on behalf of its members. And finally, mindful that this ultimate dispute must be resolved in order for the PBA to represent its members, and unconvinced that unpaid leave for two troopers will significantly effect the Division's manpower and staffing, a balancing of the conveniences and hardships between the respective parties convinces this Court that the consideration of the equities entitles petitioners to the relief they seek. Accordingly, petitioners' request for a preliminary injunction is granted, and respondents, their agents, employees, and representatives, are enjoined, restrained and prohibited from canceling, or implementing changes to full release PBA leave for Troopers Postles and Warnock pending the arbitration of the dispute between the parties. The memorandum shall constitute both the Decision and Judgment of this Court. All papers, including this Decision and Judgment, are being returned to petitioners' attorneys. The signing of this Decision and Order shall not constitute entry or filing under CPLR -7- 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry. Dated: SO ORDERED. ENTER. Albany, New York December/(p , 2003. PAPERS CONSIDERED: (1) Order to Show Cause, dated August 27, 2003. (2) Notice of Petition, dated September 4, 2003. (3) Verified Amended Petition, dated September 4, 2003, with attached exhibits. (4) Affidavit of Daniel M. Federicis, sworn to August 26, 2003, .with attached exhibit. (5) Verified Answer dated September 22, 2003. (6) Affidavit of Michael N. Volforte, Esq., sworn to September 22, 2003, with attached exhibits. (7) Affidavit of Ronald Kurach, sworn to August 28, 2003. (8) Affidavit of Deborah J. Campbell, sworn to September 19, 2003, with attached exhibits. (9) Affidavit of Ronald G. Dunn, sworn to October 1, 2003. (10) Reply Affidavit of Mark T. Walsh, sworn to October 1, 2003. (11) Reply Affidavit of Gordon D. Warnock, sworn to October 1, 2003. (12) Reply Affidavit of William R. Staviski, sworn to September 29, 2003, with attached exhibits. (13) Reply Affidavit of Daniel M. De Federicis, sworn to October 1, 2003, with attached exhibits.
