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Minerva v. County of Suffolk

Supreme Court, Suffolk County

January 7, 2020

William Minerva, RONALD BROCKMAN II and JOHN and/or JAYNE DOES 1-32 who were formerly Park Police Unit and are similarly situated but not yet identified, Plaintiffs,
v.
County of Suffolk, Defendant.

          Christopher Ross, Esq. Ross & Associates For Plaintiffs

          Dennis M. Brown Suffolk County Attorney For Defendant

          CARMEN VICTORIA ST. GEORGE, J.S.C.

         The following numbered papers were read upon this motion:

         Notice of Motion/Order to Show Cause 4-15

         Answering Papers 18

         Reply 19

         Defendant County of Suffolk (the County) moves this Court for dismissal of the complaint pursuant to CPLR §§ 3211 (a) (1), (3), (5) and (7). Plaintiffs oppose the requested relief. [1]

         The undisputed facts are that plaintiffs Minerva and Brockman were members of the Suffolk County Park Police Unit (PPU) who were transferred to the Suffolk County Police Department (SCPD) on or about October 7, 2014, pursuant to statute (Civil Service Law § 70 [7]), upon the dissolution of the PP U.Since 2009, the PPU has been represented by its exclusive collective bargaining agent, the Suffolk County Police Benevolent Association (the PBA). Effective September 23, 2014, Civil Service Law, Article V-Personnel Changes, § 70, Transfers, was amended by adding subdivision (7) that provides for the "[t]ransfer of Suffolk county park officers levels I-IV to the positions of Suffolk county police officers. Notwithstanding the provisions of subdivision one of this section or any other provision of law, the county of Suffolk may, by agreement negotiated between such county and an employee organization pursuant to article fourteen of this chapter, provide for the transfer of now existing Suffolk county parks police officers levels I-IV to positions of Suffolk county police officers. The transfer of now existing positions may be effectuated without regard to any eligible lists or preferred lists for reinstatement."

         Further undisputed is that a Memorandum of Agreement (MOA) dated September 30, 2014 between the County's Director of the Office of Labor Relations and Noel DiGerolamo, president of the PBA provided the terms of the transfer of the officers and settlement of an outstanding PPU contract for the years dated 2011 through 2014. On October 7, 2014, the Suffolk County Legislature approved Resolution No. 769-2014 authorizing the County Executive to execute an agreement with the Suffolk County PBA/PPU covering the terms and conditions of employment for January 1, 2011 through December 31, 2018. The Resolution states in pertinent part that "the County, the President of the Suffolk County [PBA] and the Suffolk County [PBA], Police Park Unit have reached an agreement covering the terms and conditions of employment for the period January 1, 2011 through December 31, 2018, subject to the approval, to the extent necessary, by the Suffolk County Legislature..." The Resolution also states that the "agreement has been ratified by the Suffolk County Police Benevolent Association and the Suffolk County Police Benevolent Association, Park Police Unit..."

         The complaint essentially alleges that the two plaintiffs lost a certain amount of vacation, personal, deferred holiday and sick days, although the Court notes that the MOA provides the transferred officers with a salary "at the next highest salary above their current rate," and that accruals of time for vacation, deferred holiday and personal matters, although reduced, are paid at a rate ten dollars more per hour than previously paid to PPU officers before the transfer. Sick days were transferred on a two-to-one basis, but PPU members who did not pay into their health insurance at the time of transfer were not required to pay into their health insurance when they transitioned to the Suffolk County Police Department.

         The complaint also alleges, inter alia, that there were other "illegal takings," including being "stripped of all ranks, promotional titles and seniority/hire dates," and having to wait for longevity payments until their sixth year as Suffolk County Police Officers. The complaint also alleges that PPU members were not consulted regarding the MOA and were not given "any means to voice their opinions, challenge it or ratify it." The complaint alleges six causes of action sounding in violation of the Civil Service Law (Article 70), violation of New York State labor laws (198 [1-a]), breach of contract based on Labor Law § 198-c, breach of contract based upon an "implied promise," conversion, and there is a cause of action seeking a declaratory judgment that each transferred PPU officer is entitled to maintain his seniority or date of hire as well as any promotion rank earned in the PPU. Plaintiffs also seek preliminary and permanent injunctions against the County, compensatory damages for "economic lass (sic), humiliation, embarrassment, physical injury, and mental and emotional distress, including but not limited to, loss of self-esteem and continued stress and anxiety...," punitive damages and attorneys' fees.

         The Court notes that the PBA, which is acknowledged by plaintiffs to be the PPU's exclusive collective bargaining agent and was the PPU's agent at the time of the transfer, is not named as a defendant in this action. Only the County of Suffolk is a named defendant. Moreover, there is no allegation that the PBA breached its duty to the plaintiffs. In fact, in opposition, plaintiffs' counsel acknowledges that there is no specific cause of action alleging that the PBA, acting on behalf of the PPU, failed to fairly represent its members, but only that the complaint "raise[s] the issue." Counsel maintains that, '[i]n short the pleading, at a minimum, lay (sic) out the basics (sic) claims of bad faith on behalf of the Union, by ignoring the interest of the PPU, without any rational explanation, in actively seeking terms and conditions which would negatively affect the rights and benefits of the group known as the PPU in the contract..." Essentially, plaintiffs contend in their opposition papers that neither the County nor the PBA "has or had authority to negotiate away benefits or compensation which was already earned by its members."

         "A union member generally has no individual rights under a collective bargaining agreement which he or she can enforce against an employer [citations omitted]. In the absence of a contract provision stating otherwise, an employee may proceed directly against the employer only when the union fails in its duty of fair representation" (Hickey v. Hempstead Union Free School District, 36 A.D.3d 760, 761 [2d Dept 2007]). "It is necessary to show that a union's conduct was ...


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