In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, et al., Appellants,
City of Schenectady et al., Respondents.
Calendar Date: November 20, 2019
J. Rylewicz, Civil Service Employees Association, Inc.,
Albany (David J. Friedman of counsel), for appellants.
& Ferlazzo, PC, Albany (Christopher P. Langlois of
counsel), for respondents.
Before: Clark, J.P., Mulvey, Devine and Pritzker, JJ.
from a judgment of the Supreme Court (Kramer, J.), entered
November 7, 2018 in Schenectady County, which, in a
proceeding pursuant to CPLR article 78, granted
respondents' motion to dismiss the petition.
December 14, 2017, respondent Gary R. McCarthy Mayor of
respondent City of Schenectady (hereinafter the Mayor) issued
an executive order in which he delegated to the Commissioner
of Public Safety his authority "to remove officers and
employees of the... Buildings Department, which constitutes
the Office of the Building Inspector and Bureau of Code
Enforcement" (see Schenectady City Charter
§ C13-3 [J]). That same day, respondent Michael Eidens
the City's Commissioner of Public Safety (hereinafter the
Commissioner) enacted regulation No. 2017-1, which stated
that, effective immediately, the Office of the Building
Inspector and Bureau of Code Enforcement, as constituting the
Buildings Department, shall be under his "direct
jurisdiction, supervision, administration, disposition,
discipline and control." A few weeks later, in January
2018, the Commissioner enacted regulation No. 2018-1 to
"outline the process for conduct of [d]isciplinary
[p]roceedings of the Buildings Department (Office of the
Building Inspector and the Code Enforcement Bureau)."
Regulation No. 2018-1 expressly stated that it was enacted
pursuant to Second Class Cities Law §§ 131, 133 and
137, Schenectady City Charter § C4-1, the Mayor's
delegation of authority and "designation of the Office
of Building Inspector and Bureau of Code Enforcement as the
April 2018, petitioners a labor union representing employees
in the Office of the Building Inspector and Bureau of Code
Enforcement and the union's leadership commenced this
CPLR article 78 proceeding to challenge the executive order
and regulation No. 2018-1 as being unconstitutional, unlawful
and/or arbitrary and capricious. Petitioners asserted that
the executive order unlawfully merged the Office of the
Building Inspector and Bureau of Code Enforcement to create a
new department, the Buildings Department, which, in turn,
brought the employees of the Office of the Building Inspector
and Bureau of Code Enforcement under the jurisdiction of the
Commissioner (see Second Class Cities Law
§§ 131, 133), who would not have otherwise had such
jurisdiction. They further alleged that regulation No. 2018-1
unlawfully impaired and diminished the disciplinary rights
and procedures set forth in their negotiated collective
bargaining agreement, thereby violating the Contracts Clause
of the U.S. Constitution. In lieu of answering, respondents
moved to dismiss the petition, arguing that petitioners
lacked standing to challenge the executive order and that
petitioners failed to state a claim. Upon the parties'
written submissions and following oral argument, Supreme
Court granted respondents' motion to dismiss, finding
that petitioners failed to state a claim. Petitioners appeal.
having been raised by respondents, Supreme Court did not
address the issue of whether petitioners have standing to
challenge the executive order. "[S]tanding is a
threshold determination and a litigant must establish
standing in order to seek judicial review, with the burden of
establishing standing being on the party seeking review"
(Rudder v Pataki, 246 A.D.2d 183, 185 ,
affd 93 N.Y.2d 273');">93 N.Y.2d 273 ; see Matter of Mental
Hygiene Legal Serv. v Daniels, 33 N.Y.3d 44, 50 ;
Citizens for St. Patrick's v City of Watervliet City
Council, 126 A.D.3d 1159, 1160 ). A petitioner
challenging governmental action must "show 'injury
in fact,' meaning that [the petitioner] will actually be
harmed by the challenged [governmental] action[, ]" and,
further, that the injury "fall[s] within the zone of
interests or concerns sought to be promoted or protected by
the statutory provision under which the [governmental entity]
has acted" (New York State Assn. of Nurse
Anesthetists v Novello, 2 N.Y.3d 207, 211 ;
see Matter of Mental Hygiene Legal Serv. v Daniels,
33 N.Y.3d at 50). For an organization to have standing, it
must establish "'that at least one of its members
would have standing to sue, that it is representative of the
organizational purposes it asserts and that the case would
not require the participation of individual
members'" (Matter of Mental Hygiene Legal Serv.
v Daniels, 33 N.Y.3d at 50, quoting New York State
Assn. of Nurse Anesthetists v Novello, 2 N.Y.3d at 211).
allege that the Mayor unlawfully engaged in a legislative act
by creating the Buildings Department and that this unlawful
legislative act brought the union's members under the
auspices/jurisdiction of the Commissioner, who used that
unlawful grant of authority to enact a regulation that
respondents have relied on to supplant the members'
negotiated rights regarding disciplinary proceedings, as set
forth in the applicable collective bargaining agreement. In
our view, these allegations would, if proven, demonstrate the
requisite harm flowing from the executive order, which would
fall within the zone of interests (compare Rudder v
Pataki, 93 N.Y.2d 273');">93 N.Y.2d 273, 278-280 ; Matter of
Eaton Assoc. v Egan, 142 A.D.2d 330, 334 ).
Accordingly, we find that petitioners have pleaded sufficient
facts which, if proven, would establish their standing to
challenge the executive order (see Matter of Maisano v
Spano, 5 A.D.3d 774, 775 ).
accepting the facts alleged in the petition as true, as we
must on a motion to dismiss (see Stega v New York
Downtown Hosp., 31 N.Y.3d 661, 664 ; Cortlandt
St. Recovery Corp. v Bonderman, 31 N.Y.3d 30, 38
), we find that petitioners have stated a valid claim
in each of the three claims asserted in the petition.
Contrary to respondents' contentions, petitioner's
claims are not precluded as a matter of law by the relevant
precedent from the Court of Appeals (see Matter of City
of Schenectady v New York State Pub. Empl. Relations
Bd., 30 N.Y.3d 109');">30 N.Y.3d 109 ; Matter of Town of
Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000,
AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange
County Local 836], 19 N.Y.3d 1066');">19 N.Y.3d 1066 ; Matter of
Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New
York State Pub. Empl. Relations Bd., 6 N.Y.3d 563');">6 N.Y.3d 563
). In view of the foregoing, Supreme Court should have
denied respondents' motion to dismiss the petition.
Mulvey, Devine and Pritzker, JJ., concur.
that the judgment is reversed, on the law, without costs,
motion denied and matter remitted to the Supreme Court to
permit respondents to serve an answer ...