| Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME,AFL-CIO v County of Erie |
| 2007 NY Slip Op 07145 [43 AD3d 1341] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Civil Service Employees Association, Inc., Local1000, AFSCME, AFL-CIO, Respondent, v County of Erie et al.,Appellants. |
—[*1] Nancy E. Hoffman, Albany (Timothy Connick of counsel), forpetitioner-respondent.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, ErieCounty (Joseph G. Makowski, J.), entered August 28, 2006 in a proceeding pursuant to CPLRarticle 78. The judgment, among other things, granted the petition in part and permanentlyenjoined respondents from laying off two Erie County Correctional Facility employees.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law without costs, the motion is granted, the petition is dismissedand the permanent injunction is vacated.
Memorandum: Petitioner, the union representing correction officers and others employed atthe Erie County Correctional Facility (ECCF), commenced this proceeding to enjoin respondentsfrom laying off "at least 20 [ECCF] employees" on the ground that the reduction in staff "createsan immediate and severe exacerbation of the danger to the safety and health of the remainingstaff." Respondents appeal from a judgment that, inter alia, granted the petition in part andpermanently enjoined respondents from laying off two ECCF employees. We agree withrespondents that Supreme Court erred in denying their motion to dismiss the petition, whichmotion 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 lawwhich would require the judiciary to preempt the exercise of discretion by [another] branch ofgovernment" (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist.Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 237 [1984]). "The lawful acts ofexecutive branch officials, performed in satisfaction of responsibilities conferred by law, involvequestions of judgment, allocation of resources and ordering of priorities, which are generally notsubject to judicial review" (id. at 239). Here, the record establishes that respondent ErieCounty Legislature acted in accordance with the law to reduce staffing appropriations for allCounty departments, [*2]and the various members of theexecutive branch properly determined how to allocate the remaining resources (see generally Matter of Mohr vGreenan, 10 Misc 3d 610, 613-615 [2005], affd 37 AD3d 1094 [2007]).Consequently, respondents' determination constitutes a nonjusticiable political question (seegenerally New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82,AFSCME, AFL-CIO, 64 NY2d at 238-240).
By our decision we do not suggest that all staffing reductions that affect the workingconditions of employees represented by petitioner are beyond judicial review. Indeed, Labor Law§ 27-a (7) (c) "establishes automatic standing for petitioners to enjoin working conditionswhich are hazardous, or present an imminent danger, in those instances where the IndustrialCommissioner fails to seek relief upon notice of such condition" (New York State Inspection,Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO, 64 NY2d at 241).To warrant judicial intervention, however, a petitioner is required to establish that " 'a dangerexists which could reasonably be expected to cause death or serious physical harmimmediately or before the imminence of such danger can be eliminated throughthe abatement procedures otherwise provided for' " (id. at 240, quoting Labor Law§ 27-a [7] [a]), and petitioner failed to make such a showing here with respect to thelayoffs of the two individuals in question. Present—Gorski, J.P., Smith, Centra, Fahey andPine, JJ.