Tuesday, May 20, 2014

An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits


An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York, 2014 NY Slip Op 03464, Appellate Division, First Department

Three members of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. The three were issued Release Time certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which provided the three elected PBA members with full-time leaves with pay and benefits.

A grand jury indicted the three members in connection with an alleged ticket-fixing scheme.* Pursuant to Civil Service Law §75(3-a), the three individuals were suspended without pay for 30 days, after which they were restored to modified duty. In addition the City rescinded their respective Release Time certificates. The PBA, however, declined the City’s offer to issue new Release Time certificates for three other employees of the union's choice, and filed a contract grievance with the City’s Office of Labor Relations.

After the grievance was denied, petitioners filed a demand for arbitration with the New York City Office of Collective Bargaining seeking to have the certificates reinstated on the ground that the rescission violated the parties' collective bargaining agreement and EO #75. In addition, the PBA filed an application in Supreme Court pursuant to CPLR Article 75 seeking a preliminary injunction barring the revocations of the Released Time Certificates pending arbitration.

Supreme Court granted the PBA a preliminary injunction enjoining the City from denying or revoking the "Release Time" certificates to the three PBA members pending resolution of arbitration proceedings.

CPLR §7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending The party seeking the preliminary injunction must demonstrate a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction preliminary injunction being issued, and a balance of the equities in its favor.

The City appealed. The Appellate Division, Judges Tom and Gische dissenting, vacated the Supreme Court’s preliminary injunction, explaining that the PBA, even assuming that an arbitration award in its favor would be render ineffectual without such provisional relief, failed to establish a likelihood of success on the merits of the claim to be arbitrated.

* The Appellate Division's opinion states “The indictments of the [three members] on charges related to a ticket-fixing scheme ... include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation ...."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03464.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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