ROBERTS 37 AFL CIO v. CITY OF NEW YORK

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

Lillian ROBERTS, as Executive Director of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Petitioners-Appellants, v. CITY OF NEW YORK, et al., Respondents-Respondents.

Community Voices Heard and New York State AFL-CIO, Amici Curiae. Mark Rosenthal, as President of Local 983 of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Petitioners-Appellants, v. City of New York, et al., Respondents-Respondents. Community Voices Heard and New York State AFL-CIO, Amici Curiae.

Decided: June 21, 2005

JOHN T. BUCKLEY, P.J., ANGELA M. MAZZARELLI, RICHARD T. ANDRIAS, GEORGE D. MARLOW, JAMES M. CATTERSON, JJ. Joel Giller, New York (Mary J. O'Connell of counsel), for Lillian Roberts, Veronica Montgomery-Costa and Michael Hood, appellants. Kennedy, Schwartz & Cure, P.C., New York (Stuart Lichten of counsel), for Mark Rosenthal, appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng, Pamela Seider Dolgow and Bruce Rosenbaum of counsel), for respondents. Community Service Society of New York, New York (Juan Cartagena and Risa E. Kaufman of counsel), for Community Voices Heard, amicus curiae. Colleran, O'Hara & Mills, L.L.P., Garden City (Edward J. Groarke and Stephanie Suarez of counsel), for New York State AFL-CIO, amicus curiae.

Petitioners, who represent certain employees of the City's Department of Parks and Recreation, originally brought these proceedings as plenary actions seeking declaratory and injunctive relief and damages against respondents' alleged continuing violations of Social Services Law § 336-c(2) (e), which prohibits the use of Work Experience Program (WEP) participants to displace regular Parks Department employees.   On the prior appeal (sub nom. Rosenthal v. City of New York, 283 A.D.2d 156, 725 N.Y.S.2d 20 [2001], lv. dismissed 97 N.Y.2d 654, 737 N.Y.S.2d 54, 762 N.E.2d 932 [2001] ), this Court held that where the issue is the propriety of actions taken under an otherwise valid statute, an article 78 proceeding is the proper vehicle, and converted the complaints into article 78 proceedings.

 As Supreme Court concluded on remand, in order for there to be a violation of § 336-c(2)(e), petitioners must allege and prove that specifically named union employees of the Parks Department were adversely affected as a direct result of respondents' use of WEP participants for Parks Department tasks (see Roberts v. City of New York, 19 A.D.3d 228, 797 N.Y.S.2d 453 [Appeal Nos. 4901-4902, decided simultaneously herewith] ).   Moreover, statistical indications of trends are insufficient, by themselves, to establish a violation of the statute.   Indeed, “[s]tatistics should be used as the drunken man uses the lampost-for support rather than illumination” (Anonymous, TPN and APACHE, The Lancet I:1478 [1986] ).

Petitioners having failed to allege sufficient facts to demonstrate that any of their members were adversely affected as a direct result of respondents' use of WEP participants, the judgments of the Supreme Court, New York County (Michael D. Stallman, J.), entered December 31, 2003, which denied the petitions and dismissed these proceedings, should be affirmed, without costs.

Judgments, Supreme Court, New York County (Michael D. Stallman, J.), entered December 31, 2003, affirmed, without costs.

BUCKLEY, P.J.

All concur.