Samuelsen v. New York City Transit Auth.
| Decision Date | 20 September 2011 |
| Docket Number | 108144/11 |
| Citation | 2011 NY Slip Op 51894 |
| Parties | John Samuelsen, as President of Transport, Workers Union of Greater New York, Local 100, Petitioner, v. New York City Transit Authority, and Manhattan and Bronx Surface Transit Operation Authority, Respondents. |
| Court | New York Supreme Court |
For Petitioner CARY KANE, LLP by Nicholas Hanlon.
For Respondents MARTIN B. SCHNABEL Vice President and General Counsel by Robert K. Drinan New York.City Transit Authority.
In this Article 78 proceeding, petitioner, John Samuelsen, as President of Transport Workers Union of Greater New York, Local 100 (the "Transport Union")1 ("petitioner") seeks to enjoin respondents New York City Transit Authority ("NYCTA") and Manhattan and Bronx Surface Transit Operation Authority ("MABSTOA") (collectively, the "Transit Authority") from eliminating or reducing the subway replacement shuttle service on the IRT No. 2 line in the Bronx, and an injunction requiring the Transit Authority to restore shuttle bus service to appropriate and scheduled levels, notify the City Council at least 30 days prior to any future reductions in service, and hold public hearings on any proposed service reductions if required to do so by the City Council.
In 2010, the Transit Authority scheduled and budgeted for certain renovations and/or repairs to be performed in the summer of 2011 on the tracks of the IRT No. 2 and No. 5 lines (collectively, the "No. 2 line") in the Bronx. Service on this line was scheduled to be suspended from 12:01 a.m. Saturdays through 5:00 a.m. Mondays between Saturday July 2, 2011 and Monday July 25, 2011.
On February 11, 2011, the Transit Authority3 notified the Transport Union of scheduled track work on the No. 2, and as well as other lines, and of its intention to institute shuttle bus service between the affected stations.
On May 12, 2011, the Transit Authority provided Transport Union representatives with a "Subway Replacement Bus Forecast," also known as a "General Order" or "G.O." indicating that the suspended service on the IRT No. 2 line would be replaced by 201 shuttle buses on Saturdays and 152 shuttle buses on Sundays which would transport riders between the affected subway stations. However, on June 27, 2011, the Transit Authority notified the Transport Union that the number of shuttle buses would be reduced from 201 to 154 on Saturdays, and from 152 to 126 on Sundays.
On Saturday July 2, 2011, the Transit Authority implemented the reduced shuttle bus service.
In support of the Petition, petitioner contends that PAL § 1204(15) directs the Transit Authority to notify the City Council at least 30 days prior to the implementation of "any proposed modification, discontinuance, curtailment or change of any transit route or method of transportation . . . ." Upon receipt of such notice, the City Council may require the TransitAuthority to hold public hearings on the proposed "modification, discontinuance, curtailment or change." Citing caselaw, petitioner contends that in order "to build greater community participation in policy debates and decisions," the New York City Charter Revision Commission proposed that those governmental decisions relative to land use effects be made by the City Council under the Charter revisions." However, the Transit Authority failed to notify the New York City Council (the "City Council") on February 11, 2011of the initial scheduled suspension of service in compliance with Public Authorities Law ("PAL") § 1204(15), or on June 27, 2011 of the subsequent proposed reduction in shuttle bus service.
The Transit Authority is also required to operate the transit system "for the convenience and safety of the public" (PAL § 1204(15)). The suspension of subway service for the No. 2 trains between the Grand Concourse and East 180th Street stations in The Bronx, as well as the subsequent reduction in subway replacement shuttle bus service at the No. 2 subway stations in the Bronx, constitutes a "modification, discontinuance, curtailment or change of [a] transit route" as contemplated by PAL § 1204(15). The reduced shuttle bus service resulted in severe overcrowding and delays for the ridership along the IRT No. 2 train in the Bronx. The overcrowding jeopardized the safety of the riding public and bus operators alike. Riders were forced to stand on the wrong side of the safety line, in the stairwells, and with their faces nearly against the windshield. Unless the Court enjoins the reduction of subway replacement shuttle bus service in the Bronx, the riding public will continue to suffer immediate and irreparable injury to their convenience and safety, and Transport Union workers will suffer immediate and irreparable injury in the form of loss wages and opportunities to work.
In response, the Transit Authority contends that the New York City train system requires maintenance, upgrades, and capital improvements on a regular basis. As track and signal work cannot be performed with active train traffic, and often requires a cessation of electricity to the third rail, such work requires a temporary service diversion, known as the General Order or G.O. The Transit Authority has 50-70 G.O.'s each week in order to perform repairs or maintenance.Temporary service adjustments, which may require providing alternate service for a period of time to permit repair, maintenance and capital work occur most often during non rush hours, i.e., evenings and weekends. Rail and signal repairs, maintenance or capital construction which require service diversions are usually in the planning stages months before the actual work is performed. The Transit Authority prepares a series of forecasts which include tentative service diversions, tentative times and distances of rail closures, and the tentative number of shuttle buses to provide temporary alternate service. The forecasts are revised as the work date approaches to account for public, street fairs, other activities and changes in construction needs. Usually about six to eight weeks prior to scheduled work, a package is reviewed for all G.O.'s on a given weekend.
The operation that the petition complains of was a service adjustment due to maintenance or capital work. G.O.'s can change or be cancelled for any given day or weekend for a number of reasons, including weather, holidays and special events. Frequently, a G.O. requires temporary cessation of service on a portion of a subway line and when other train service does not exist, shuttle bus service may be provided. G.O.'s have never been considered as schedule changes or changes in method of operation for which notice under PAL § 1204(15) has been given.
The initial May 12, 2011 "Subway Replacement Bus Forecast" is, as it is entitled, only a"forecast," meant as an advisory to the Department of Buses, and was not intended as a final statement of the number of buses that would be needed to substitute for subway service due to track replacement for the No. 2 line. When the forecast was prepared, it was anticipated that there would be no service on the No. 2 line for the Grand Concourse to 80th Street for 53 hours. Thus, it was estimated that a certain number of shuttle buses were necessary to provide temporary alternate service.
The G.O. for this project was included in the Week 29 package for all work to be performed during the weekend of July 16 and 17, 2011. This package was approved on June 10, and the actual number of hours for cessation of rail service was reduced from 53 to 42 — 11 hours. The change was approximately 20% and as a result, the actual need was for fewer shuttle buses than originally estimated. The Transit Authority concluded that the average number of riders for each shuttle bus would increase for 55 to 60 persons, and the buses have a capacity of 80 persons and articulated buses, if used, had a capacity of 120 persons.
On average, each shuttle bus costs the Authority approximately $1,000 (the drivers must be paid overtime and overhead charged to the Capital Program). The forecast relied upon by the Union in this case, which was simply a projection or estimate before actual needs were known, was never implemented. The Transit Union receives the shuttle bus schedule approximately one week prior to its implementation. The Union knows, therefore, that the May forecast was changed and knows that the May forecast was never implemented.
The Transit Authority argues that the petition should be dismissed. Petitioner's request for a writ of "prohibition" cannot be granted because petitioner failed to establish a clear legal right to the relief requested. The Transit Union cannot seriously argue that it has a clear legal right to compel the Transit Authority to use a particular estimate of the number of shuttle buses temporarily necessary to permit the repair and maintenance of subway tracks. PAL § 1204(15) fails to provide any basis for a union challenge to a temporary adjustment in service. This statute does not require the Transit Authority to use a certain number of buses, or rely on an incorrect estimate.
There was no obligation to notify the Board of Estimate (which no longer exists) because there was no "proposed modification, discontinuance, curtailment or change of any transit route or method of transportation." The action the Transit Union challenges is the reduction in the estimated number of shuttle buses and the Transit Union seeks to force the Transit Authority to use more union drivers than are actually necessary. Such untenable claim finds no support in the law. Given the Transit Authority's broad statutory mandate to "do all things necessary or convenient to carry out its powers" (PAL § 1207 (17)), including to "construct," "improve," "maintain," and "operate" the transit facility, and because the notice requirement does not and cannot apply to day to day operation, repair and maintenance decisions and judgments, the Transit Union has...
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