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In re Patrolmen's Benevolent Association of City of New York, Inc.

Supreme Court of New York, First Department

December 3, 2013

In re Patrolmen's Benevolent Association of the City of New York, Inc., etc., et al., Petitioners-Respondents,
v.
City of New York, et al., Respondents-Appellants. Municipal Labor Committee, Amicus Curiae.

Respondents appeal from an order and judgment (one paper) of the Supreme Court, New York County (Joan B. Lobis, J.), entered December 30, 2011, insofar as appealed from as limited by the briefs, enjoining respondents from implementing any termination or revocation of "Release Time" leave for the three individual petitioners pending resolution of arbitration proceedings commenced by petitioner Patrolmen's Benevolent Association.

Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch and Pamela Seider Dolgow of counsel), for appellants.

Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn and Mark T. Walsh of counsel), and Michael T. Murray, New York (Michael T. Murray, Gaurav I. Shah and David W. Morris of counsel), for respondents.

Greenberg Burzichelli Greenberg P.C., Lake Success (Harry Greenburg and Genevieve E. Peeples of counsel), for amicus curiae.

Peter Tom, J.P., Richard T. Andrias, Leland G. DeGrasse, Judith J. Gische, JJ.

ANDRIAS, J.

Supreme Court granted petitioners a preliminary injunction enjoining respondents from denying or revoking "Release Time" to the individual petitioners, pending resolution of arbitration proceedings. Because petitioners have failed to establish a likelihood of success on the merits of the claim to be arbitrated, we reverse and vacate the preliminary injunction.

The individual petitioners were elected by members of petitioner Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. On July 1, 2011, at the request of the PBA, the Office of Labor Relations (OLR) issued Release Time certificates to the individual petitioners pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which approved full-time leave with pay and benefits.

On October 25, 2011, a grand jury indicted the individual petitioners in connection with an alleged ticket-fixing scheme. On October 28, 2011, pursuant to Civil Service Law § 75(3-a), the individual petitioners were suspended without pay for 30 days, after which they were restored to modified duty. Meanwhile, by letter dated November 3, 2011, the OLR rescinded their Release Time certificates. The PBA declined the OLR's offer to issue new Release Time certificates for three employees of the union's choice, and filed a group grievance with the OLR.

After the grievance was denied, petitioners filed a request for arbitration with the New York City Office of Collective Bargaining seeking to reinstate the certificates on the ground that the rescission violated the parties' collective bargaining agreement and EO 75. In conjunction therewith, petitioners commenced this proceeding seeking a preliminary injunction pending arbitration, pursuant to CPLR 7502(c).

CPLR 7502(c) provides that the Supreme Court "may entertain an application 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 party seeking the preliminary injunction must also demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor (see Interoil LNG Holdings, Inc. v Merrill Lynch PNG LNG Corp., 60 A.D.3d 403, 404 [1st Dept 2009] ; Erber v Catalyst Trading, 303 A.D.2d 165 [1st Dept 2003]). Applying these standards, even assuming that petitioners established that an award in their favor would be rendered ineffectual without provisional relief, as required by CPLR 7502(c), they have failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839 [2005]).

The right of union-designated employees to be released from their job duties to perform union or joint labor-management activities is established in EO 75, which generally vests the City with broad oversight of employee representatives. Section 4(4) of EO 75 provides:

"Organizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions of any kind, are excluded from the protection or coverage of this Order. Any employees assigned on a full or part-time basis or granted leave of absence without pay pursuant to this Order who participate in such excluded activity may have such status suspended or terminated by the City Director of Labor Relations."

Section 4(10) 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." Section 5 provides that "[n]othing contained in this Order shall be deemed to have the effect of changing the character of any subject matter hereof which is a ...


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