Local 2507 v. Health and Hospitals Corporation

(Sup. Ct. N.Y. Cty. 1/31/85)

We represented: Plaintiff

We represented: Gammerman, J.

DECISION and ORDER In this action for declaratory and injunctive relief in connection with alleged violations of the New York State Constitution, the Civil Service Law and the Personnel Rules and Regulations of the Health and Hospitals Corporation of the City of New York, in the demotion, promotion and appointment of certain employees of the Emergency Medical Service ("EMS"), plaintiff moves, by order to show cause, dated November 16, 1984, for what appears to be the ultimate relief sought in the complaint. Defendants, The Health and Hospitals Corporation ("HHC") and the director of EMS, cross-move to dismiss the complaint pursuant to CPLR 3211 (a)(10), 7804(f), 1001(a) and 1003, on the grounds that plaintiff lacks standing to prosecute this action and for failure to join necessary parties, or alternatively, directing joinder of additional parties. Also, pursuant to CPLR 103, defendants seek to have this action converted to a special proceeding under Article 78. In their reply papers (apparently timely served but submitted late on consent) defendants raise as additional grounds dismissal that (1) the application for a preliminary injunction is not properly before the court because neither the order to show cause nor the complaint set forth a request for a preliminary injunction and that it was not commenced by notice of motion and (2) that because the anticipated demotions sought to be enjoined have materialized, this litigation is rendered moot.

It is noted that while plaintiff's order to show cause appears to seek the same relief ultimately sought in the complaint (which does not seek preliminary injunctive relief) the affidavits in support (attached as part of plaintiffs' first Exhibit 1) seek only a temporary restraining order and a preliminary injunction as to the demotion of certain individuals and the promotion of others. That branch of the application which sought a temporary restraining order was denied.

Plaintiff is a labor union whose membership consists of emergency technicians and non-management supervisory personnel who are civil service employees employed by EMS which is a division of defendant HHC. The summons and complaint were served together with the order to show cause. No answer has yet been served.

The complaint specifically alleges violations of Article V, Section 6 of the New York State Constitution providing that "appointments and promotions in the civil service of the state . . . shall be made according to merit and fitness to be ascertained, as far as practicable" by competitive examination. The Complaint also specifically alleges violations of various provisions of the Civil Service Law and the Personnel Rules and Regulations of defendant HHC regarding temporary, provisional and permanent civil service positions, the periods of time which those positions may and can be held, the qualifying examinations and the establishment and use of eligible lists.

In its affidavits, plaintiff purports to represent all of its members. In the complaint, however, plaintiff seeks inter alia, to redress the rights of particular members who are identified by name. Further, the complaint seeks to enjoin defendants generally from certain acts or practices alleged to be contravention of law.

In support of their cross-motion, defendants assert that the plaintiff lacks standing to bring this action because there is a conflict of interest in their representation of certain of its members to the detriment of others. Another ground raised for dismissal is the non-joinder of those union members who have been named and those who have yet to be identified, all of whom will be adversely affected by relief which may be granted. Finally, defendants argue that the action is brought in the wrong form because a challenge to administrative determinations based upon violations of law must be brought as a special proceeding.

Upon review of the record, the court finds that the motion must be denied and the cross-motion must be granted at least to the extent that the anticipated demotions and promotions have taken place, the main motion is moot. Contrary to defendants' assertions, however, whether the demotions, promotions and other employment practices were and are in accordance with law, is not moot.

It is well settled that a preliminary injunction will not ordinarily be granted where the effect thereof is to grant the plaintiff the same relief which may ultimately be obtained after a trial on the merits unless plaintiff clearly demonstrates the urgency and necessity for relief prior to trial. (Allied Cross Roads Nuclear Corp. v. Atcor, Inc., 25 AD2d 643.) Moreover, before such relief can be granted, plaintiff must demonstrate a clear right to the relief by showing the likelihood of ultimate success on the merits, irreparable injury absent the relief and a balancing of the equities. (W.T. Grant v. Scrogi, 52 NY2d 496.) The record presented discloses no substantive evidence to support plaintiff's conclusory allegations on any of these requirements.

The cross-motion is meritorious only insofar as necessary parties have not been joined. The complaint contains references to particular individuals whose positions or titles would be affected if the relief sought were granted. Clearly, these individuals are necessary parties without whom the action may not proceed. Their rights, however, great or tenuous, may be affected. These employees and those yet to be identified at the very least are entitled to notice of this action and an opportunity to be heard upon matters which may intimately concern their livelihood.

Provided all necessary parties are joined or given adequate notice of the action and an opportunity to intervene on their own behalf, the court finds no impediment to plaintiff representing all of its membership. (See, Jacobs v. Board of Education, 64 AD2d 148.) Here, the perceived conflict may be mollified by joinder and notice. Certainly, this is preferable to paralyzing the union in an alleged good faith effort to represent its membership generally.

Regarding the form of this action, as a general rule injunctive relief is not normally available in proceedings under article 78 (See, Matter of Edelman v. Baumgartner, 12 AD2d 992). Furthermore, while an Article 78 proceeding may be available for declaratory judgments where administrative acts are attacked for illegality, an action for such relief is not foreclosed. (See, New York Telephone Company v. Commissioner of New York State Department of Transportation, 62 Misc.2d 6.) It cannot be said that this action is brought in improper form.

Accordingly, plaintiff's motion for a preliminary injunction is denied and defendants' cross‑motion is granted only to the extent of directing plaintiff, within 60 days from the date of publication hereof, to join all persons who have been identified or who are identifiable as persons who may be adversely affected by the relief sought in the complaint. To ensure that all such persons have an opportunity to be heard on their own behalf, the plaintiff shall provide, within the same time frame, notice to its general membership and to all of those named on the eligible list (Plaintiff's Exhibit 4) of the existence of this lawsuit and its purpose or purposes as well as each individuals' right to intervene or proceed separately.

The defendants shall serve their answer within 20 days after service of a copy of this order with notice of entry.