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

IN RE: CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., Local 1000, AFSCME, AFL-CIO, Petitioner-Respondent, v. COUNTY OF ERIE, Joel A. Giambra, Erie County Executive, Patrick Gallivan, Erie County Sheriff, and Erie County Legislature, Respondents-Appellants.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. Laurence K. Rubin, County Attorney, Buffalo (George M. Zimmermann of Counsel), for Respondents-Appellants. Nancy E. Hoffman, Albany (Timothy Connick of Counsel), for Petitioner-Respondent.

Petitioner, the union representing correction officers and others employed at the Erie County Correctional Facility (ECCF), commenced this proceeding to enjoin respondents from laying off “at least 20 [ECCF] employees” on the ground that the reduction in staff “creates an immediate and severe exacerbation of the danger to the safety and health of the remaining staff.”   Respondents appeal from a judgment that, inter alia, granted the petition in part and permanently enjoined respondents from laying off two ECCF employees.   We agree with respondents that Supreme Court erred in denying their motion to dismiss the petition, which motion we note was incorrectly denominated a “cross petition” (see CPLR 7804[f] ).

 “The statutory right to a safe workplace may not be enforced by means of a remedy at law which would require the judiciary to preempt the exercise of discretion by [another] branch of government” (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 237, 485 N.Y.S.2d 719, 475 N.E.2d 90).  “The lawful acts of executive branch officials, performed in satisfaction of responsibilities conferred by law, involve questions of judgment, allocation of resources and ordering of priorities, which are generally not subject to judicial review” (id. at 239, 485 N.Y.S.2d 719, 475 N.E.2d 90).   Here, the record establishes that respondent Erie County Legislature acted in accordance with the law to reduce staffing appropriations for all County departments, and the various members of the executive branch properly determined how to allocate the remaining resources (see generally Matter of Mohr v. Greenan, 10 Misc.3d 610, 613-615, 803 N.Y.S.2d 876, affd. 37 A.D.3d 1094, 828 N.Y.S.2d 925).   Consequently, respondents' determination constitutes a nonjusticiable political question (see generally New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO, 64 N.Y.2d at 238-240, 485 N.Y.S.2d 719, 475 N.E.2d 90).

By our decision we do not suggest that all staffing reductions that affect the working conditions of employees represented by petitioner are beyond judicial review.   Indeed, Labor Law § 27-a (7)(c) “establishes automatic standing for petitioners to enjoin working conditions which are hazardous, or present an imminent danger, in those instances where the Industrial Commissioner fails to seek relief upon notice of such condition” (New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO, 64 N.Y.2d at 241, 485 N.Y.S.2d 719, 475 N.E.2d 90).   To warrant judicial intervention, however, a petitioner is required to establish that “ ‘a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the abatement procedures otherwise provided for’ ” (id. at 240, 485 N.Y.S.2d 719, 475 N.E.2d 90, quoting Labor Law § 27-a [7][a] ), and petitioner failed to make such a showing here with respect to the layoffs of the two individuals in question.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the petition is dismissed and the permanent injunction is vacated.