IN RE: Lillian Roberts (2011)

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for municipal respondents.

Sonya M. Kaloyanides, New York (Steven J. Rappaport of counsel), for Ricardo Elias Morales, respondent.

Greenberg Burzichelli Greenberg, P.C., Lake Success (Harry Greenberg of counsel), for Municipal Labor Committee, Amicus Curiae.

Steven Decosta, New York (John F. Wirenius of counsel), for New York City Board of Collective Bargaining, Amicus Curiae.

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Order, Supreme Court, New York County (Walter B. Tolub, J.), entered December 30, 2009, which denied the petition and dismissed this proceeding brought pursuant to article 78, unanimously affirmed, without costs.

Petitioners are comprised of three unions representing employees of the New York City Housing Authority (N.Y.CHA) and three individuals who lost their jobs with NYCHA after layoffs were implemented in early 2009.   In 2009, petitioners sent a request to arbitrate to respondents and to the Board of Collective Bargaining (BCB), and, pursuant to Administrative Code of the City of New York § 12–312(d), filed a written waiver in which they agreed to “waive the right, if any, to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator's award.”   In the arbitration proceeding, petitioners claimed that the layoffs and related actions violated section 11 of the parties' Memorandum of Economic Agreement (MEA).   At around the same time, petitioners commenced this article 78 proceeding, asserting that respondents' actions violated Local Law 35 (New York City Charter § 312[a] ) and article V, section 6 of the New York State Constitution.

Supreme Court properly determined that this proceeding is barred by the waiver petitioners filed.   When construing Administrative Code § 12–312(d) in accordance with its plain meaning, as one must, where, as here, the statute is unambiguous (see Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 N.Y.2d 205, 208 [1976] ), it is clear that petitioners agreed to arbitrate the entire dispute, not just contractual claims.   Indeed, there is nothing in the statute or its legislative history to support petitioners' position that statutory or constitutional claims are exempt from the waiver.

Petitioners' reliance on 14 Penn Plaza, LLC v. Pyett (_ U.S. _, 129 S Ct 1456 [2009] ), Wright v Universal Maritime Service Corp. (525 U.S. 70 [1998] ), Shipkevich v Staten Island University Hosp. (2009 WL 1706590 [ED N.Y.2009] ) and Crespo v 160 W. End Ave. Owners Corp. (253 A.D.2d 28 [1999] ) is misplaced.   Those cases, unlike here, involved individual discrimination claims and the interpretation of collective bargaining agreements.   Equally misplaced is the New York City Board of Collective Bargaining's (BCB) reliance, in its amicus brief, on Scheiner v New York City Health and Hospitals (152 F Supp 2d 487 [SD N.Y.2001] ).   That case involved an individual employee's right to bring a federal civil rights claim.   Here, petitioners seek to enforce collective, not individual, rights.   Moreover, the contractual and statutory claims at issue in this case are virtually identical.

Supreme Court properly declined to follow BCB's decisions interpreting Administrative Code § 12–312(d).  As the court noted, agency determinations that completely conflict with the clear wording of a statutory provision should not be upheld (see Matter of Raritan Dev. Corp. v Silva, 91 N.Y.2d 98, 103 [1997] ).

We have considered petitioners' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK