Civil Serv. Emps. Ass'n, Inc. v. City of Schenectady

• Decision Date: 26 December 2019
• Docket Number: 528075
• Citation: 178 A.D.3d 1329,116 N.Y.S.3d 419
• Parties: In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, et al., Appellants, v. CITY OF SCHENECTADY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1329

116 N.Y.S.3d 419

In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, et al., Appellants,

v.CITY OF SCHENECTADY et al., Respondents.

528075

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 20, 2019

Decided and Entered: December 26, 2019

Daren J. Rylewicz, Civil Service Employees Association, Inc., Albany (David J. Friedman of counsel), for appellants.

Girvin & Ferlazzo, PC, Albany (Christopher P. Langlois of counsel), for respondents.

Before: Clark, J.P., Mulvey, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.P.

On 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 Optional City Government Law § 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 Buildings Department."

In 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.

Despite 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, 675 N.Y.S.2d 653 [1998], affd 93 N.Y.2d 273, 689 N.Y.S.2d 701, 711 N.E.2d 978 [1999] ; see Matter of Mental Hygiene Legal Serv. v. Daniels, 33 N.Y.3d 44, 50, 98 N.Y.S.3d 504, 122 N.E.3d 21 [2019] ; Citizens for St. Patrick's v. City of Watervliet City Council, 126 A.D.3d 1159, 1160, 5 N.Y.S.3d 582 [2015] ). 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, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004] ; see Matter of Mental Hygiene Legal Serv. v. Daniels, 33 N.Y.3d at 50, 98 N.Y.S.3d 504, 122 N.E.3d 21 ). 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, 98 N.Y.S.3d 504, 122 N.E.3d 21, quoting New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d at 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 ).

Petitioners allege that the Mayor unlawfully engaged in a legislative act by creating...