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ASS'N OF SURROGATES v. STATE OF N.Y.

October 26, 1990

ASSOCIATION OF SURROGATES AND SUPREME COURT REPORTERS WITHIN THE CITY OF NEW YORK, MARY O'LEARY, PRESIDENT; CITYWIDE ASSOCIATION OF LAW ASSISTANTS, BARBARA BROWN, PRESIDENT; COURT ATTORNEYS ASSOCIATION OF THE CITY OF NEW YORK, ROBERT A. MULHALL, PRESIDENT; COURT OFFICERS BENEVOLENT ASSOCIATION OF NASSAU CO., JEFFREY POLLACK, PRESIDENT; DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES & LOCAL 1070, PAUL SHELKIN, PRESIDENT; LOCAL 704, SERVICE EMPLOYEES INTERNATIONAL UNION, JOHN WALSH, PRESIDENT; NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, ILA, LOCAL 2013, AFI-CIO JOHN MCKILLOP, PRESIDENT; NINTH JUDICIAL DISTRICT COURT EMPLOYEES ASSOCIATION, MARTIN SHARP, PRESIDENT; SUFFOLK CO. COURT EMPLOYEES ASSOCIATION, INC., THOMAS F. MCGUINNESS, PRESIDENT; THE COMMUNICATION WORKERS OF AMERICA, AFL-CIO, LOCAL 1180, ARTHUR CHELIOTES, PRESIDENT; CIVIL SERVICE FORUM, LOCAL 300, SEIU, SALVATORE CANGIARELLA, PRESIDENT; JANET FOSTER, SUSAN GLASBRENNER, MICHAEL SULLIVAN, DAVID RICHMAN, GREG SNIGOR, JAMES DINAPOLI, WILLIAM ROSARIO, ABEL PELTRO, GEORGE F. BERGHORN, LISA ROSENZWEIG AND MICHAEL SMITH, PLAINTIFFS,
v.
STATE OF NEW YORK; EDWARD V. REGAN, AS COMPTROLLER OF THE STATE OF NEW YORK; ROBERT ABRAMS, AS ATTORNEY GENERAL OF THE STATE OF NEW YORK; MATTHEW T. CROSSON, AS CHIEF ADMINISTRATOR OF THE UNIFIED COURT SYSTEM AND THE STATE OF NEW YORK UNIFIED COURT SYSTEM, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

  OPINION AND ORDER

This is a declaratory judgment action seeking to declare unconstitutional Section 375 of Chapter 190 of the Laws of New York of 1990 which establishes a lag payroll for nonjudicial employees of the Unified Court System hired on or after April 7, 1983. Plaintiffs by order to show cause moved for a preliminary injunction pursuant to Fed.R.Civ.P. 65 enjoining defendants from implementing the law on November 7, 1990 and directing that they continue to pay plaintiffs in the same manner as currently. On the return date the parties agreed that there were no issues of fact and that the Court could also treat this as a motion and cross-motion for summary judgment. For the reasons set forth below, plaintiffs' motions are denied and defendants' motion for summary judgment is granted.

BACKGROUND

Section 375 of Chapter 190 provides:

  b. (1) Notwithstanding the provisions of
  subdivision a of this section or of section 200
  of the state finance law, commencing with the
  last bi-weekly payroll period ending at least
  fourteen days before March 31, 1991 for each
  nonjudicial officer or employee, the salary or
  wages of such officer or employee shall be
  payable by the state two weeks after they shall
  have become due. Until such time, an alternative
  procedure for payment of the salaries and wages,
  to be determined by the comptroller, may be
  implemented in lieu of the procedure specified in
  subdivision 1 of such section 200 or in other
  provisions of law. The procedures set forth in
  this paragraph (including any alternative
  procedure determined by the comptroller) shall
  remain in effect until the state and an employee
  organization representing nonjudicial officers
  and employees who are in positions which are in
  collective negotiating units established pursuant
  to article 14 of the civil service law enter into
  an agreement providing otherwise for the payment
  of salaries and wages to such officers and
  employees.
    (2) The provisions of paragraph 1 of this
  subdivision shall not apply to any alternative
  procedure for the payment of salaries and wages
  to nonjudicial officers and employees that was
  adopted pursuant to law and in effect immediately
  preceding the effective date of this subdivision.

Act approved May 25, 1990, ch. 190, 1990 N.Y. Laws 375.

On June 18, 1990, the state comptroller determined in order to implement Section 375 that, commencing November 7, 1990, affected employees will be paid nine-days' salary rather than ten-days' salary in each pay period for ten two-week pay periods. See Crosson Aff., Exh. C. Thus during the 1990-91 fiscal year ending March 31, 1991, employees will be paid for 50 rather than 52 weeks of employment. The two weeks' pay withheld would be repaid to the affected employees upon termination of their employment at the rate applicable to them at that time. This so-called lag payroll system under present state parlance has been applicable to state employees other than those in the Unified Court System for several years.

DISCUSSION

In this Circuit, a party seeking preliminary injunctive relief must show:

  (a) irreparable harm and (b) either (1)
  likelihood of success on the merits or (2)
  sufficiently serious questions going to the
  merits to make them a fair ground for litigation
  and a balance of hardships tipping decidedly
  toward the party requesting the preliminary
  relief.

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Because plaintiffs in this action have failed to demonstrate either a likelihood of success on the merits or serious questions as to the merits combined with a balance of hardships in their favor, their motion for a preliminary injunction is denied.

Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because the matter presented does not raise any issues of fact, the Court denies ...


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