author: Smith, J. Read, J. (dissenting).

text:
    [874 NE2d 706, 842 NYS2d 742]
    Mayor of the City of New York, Appellant, v Council of the City of New York, Respondent, and Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.
    Argued April 24, 2007;
    decided June 12, 2007

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams, Mordecai Newman, Leonard Koerner, Spencer Fisher, Larry A. Sonnenshein and Tal Golomb of counsel), for appellant.
    I. Municipal Home Rule Law § 23 (2) (f) and New York City Charter § 38 (5) provide that any local law that curtails “any power” of an elective officer shall be subject to a mandatory referendum. The Appellate Division majority acknowledges that Local Law Nos. 18 and 19 (2001) of the City of New York curtail mayoral power. It follows that the referendum requirement should apply to those local laws. (Matter of

      Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Morin v Foster, 45 NY2d 287; Shilbury v Board of Supervisors of County of Sullivan, 54 Misc 2d 979; Matter of Bauch v City of New York, 21 NY2d 599; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Sacco v Maruca, 175 AD2d 578; Local Govt. Assistance Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524; Burke v Kern, 287 NY 203; Matter of Finegan v Cohen, 275 NY 432.) II. The purported amendments undermine the Mayor’s authority to negotiate the question of whether emergency medical technicians and fire alarm dispatchers are subject to “special and unique” circumstances. That authority derives from Civil Service Law § 201, which confers on the Mayor exclusive power to negotiate terms and conditions of municipal employment on behalf of the City of New York, and from the Collective Bargaining Law, which is itself a product of negotiations between the Mayor and municipal unions. Accordingly, the Taylor Law preempts the purported amendments’ curtailment of the Mayor’s bargaining authority. (Matter of Doyle v City of Troy, 51 AD2d 845; Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370; Matter of Levitt v Board of Collective Bargaining of City of N.Y., Off. of Collective Bargaining, 79 NY2d 120.)

      Elizabeth Fine, General Counsel, Council of the City of New York, New York City (Alvin L. Bragg, Jr., and Lauren G. Axelrod of counsel), for respondent.
    I. The Mayor lacks standing for his Taylor Law claim and, in any event, that claim fails, because Local Law Nos. 18 and 19 (2001) of the City of New York are valid exercises of powers that were expressly granted to the City Council by the Taylor Law. (City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Stark v Goldberg, 297 AD2d 203; Sanders v Winship, 57 NY2d 391; Matter of Levitt v Board of Collective Bargaining of City of N.Y., Off. of Collective Bargaining, 79 NY2d 120.) II. The Appellate Division correctly held that Local Law Nos. 18 and 19 (2001) of the City of New York were validly enacted without a referendum. (Lyles v State of New York, 3 NY3d 396; Palmer v Occidental Chem. Corp., 356 F3d 235; Matter of Slominski v Rutkowski, 62 NY2d 781; Meredith v Connally, 38 AD2d 385; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Sanders v Winship, 57 NY2d 391; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Alweis v Evans, 69 NY2d 199.)

      Gladstein, Reif & Meginnis, LLP, New York City (Walter M. Meginniss, Jr., and Anjana Malhotra of counsel), Joan Stern Kiok and Eddie M. Demmings, General Counsel, District Council 37, AFSCME, AFL-CIO (Leonard D. Polletta of counsel), for intervenors-respondents.
    I. Local Law Nos. 18 and 19 (2001) of the City of New York are consistent with the Taylor Law’s explicit grant of City Council authority to enact such legislation. (Matter of Levitt v Board of Collective Bargaining of City of N.Y., Off. of Collective Bargaining, 79 NY2d 120; Matter of Doyle v City of Troy, 51 AD2d 845; Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370; Suffolk County Police Benevolent Assn. v County of Suffolk, 273 AD2d 222.) II. Neither the City Charter nor the Municipal Home Rule Law bars the City Council’s enactment of Local Law Nos. 18 and 19 (2001) of the City New York without a referendum. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Tompkins v Hunter, 149 NY 117; Connecticut Nat. Bank v Germain, 503 US 249; United States v Ron Pair Enterprises, Inc., 489 US 235; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Levitt v Board of Collective Bargaining of City of N.Y., Off. of Collective Bargaining, 79 NY2d 120; City of Corning v Corning Police Dept. of Corning City Unit of Steuben County Ch., Civ. Serv. Empls. Assn., 81 Misc 2d 294, 49 AD2d 689; Matter of Mooney v Cohen, 272 NY 33; Di Prima v Wagner, 14 AD2d 36, 10 NY2d 728; Alweis v Evans, 69 NY2d 199.)

      Riele Morgiewicz, Albany, for New York Conference of Mayors and Municipal Officials, amicus curiae.
    I. The doctrine of curtailment embodied in Municipal Home Rule Law § 23 (2) is a core aspect of local democracy and may only be superseded by clear legislative direction. (Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Morin v Foster, 45 NY2d 287; Matter of Yevchak v Raymond, 63 AD2d 197; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652; Van Amerogen v Donnini, 78 NY2d 880; Local Govt. Assistance Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524.) II. The Appellate Division’s unnatural interpretation of the term “any power” improperly undermines that scope of the curtailment doctrine’s protection of elected officials’ autonomy. (Shilbury v Board of Supervisors of County of Sullivan, 54 Misc 2d 979.)

      Hiscock & Barclay, LLP, Albany (Mark W. Blanchfield and David M. Cost of counsel), for New York State County Executives’ Association, amicus curiae.
    I. Local legislation that has the effect of interfering with the municipal chief executive officer’s negotiating power in the employee bargaining process is preempted by the Taylor Law. II. The doctrine of curtailment is critical to the preservation of the autonomy of elected officials. The cumulative effect of the Appellate Division’s decision would be to reduce such autonomy in contravention of the purpose of the doctrine. (Loening v Seaman, 290 NY 527; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Morin v Foster, 45 NY2d 287; Shilbury v Board of Supervisors of County of Sullivan, 54 Misc 2d 979; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; People v Newman, 32 NY2d 379, 414 US 1163.)

      Christine Malafi, County Attorney, Hauppauge (Ann K. Kandel of counsel), for County of Suffolk, amicus curiae.
    I. The First Department incorrectly interpreted Municipal Home Rule Law § 23 (2) with respect to when a local law is subject to mandatory referendum. (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Matter of Friss v City of Hudson Police Dept., 187 AD2d 94; Matter of R.A. Bronson, Inc. v Franklin Correctional Facility, 255 AD2d 723; Rocovich v Consolidated Edison Co., 78 NY2d 509; Matter of Albano v Kirby, 36 NY2d 526; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Morin v Foster, 45 NY2d 287.) II. Municipal Home Rule Law § 34 does not contain the limiting language contained in Municipal Home Rule Law § 23 (2) and thus is distinguishable from Municipal Home Rule Law § 23 (2). (Matter of New York Pub. Interest Research Group v Giuliani, 228 AD2d 276; Hampton Hgts. Dev. Corp. v Board of Water Supply of City of Utica, 140 AD2d 958; Matter of Yevchak v Raymond, 63 AD2d 197.)

      Lorna B. Goodman, County Attorney, Mineóla (Karen Hutson and Dennis J. Saffran of counsel), for County of Nassau, amicus curiae.
    Section 155 of the Nassau County Charter was enacted by the State Legislature and protects the County of Nassau’s voters when changes are proposed that would curtail the powers of officials they elect. (423 S. Salina St. v City of Syracuse, 68 NY2d 474, 481 US 1008; Elfvin v City of Buffalo, 19 NY2d 280; Matter of Finegan v Cohen, 275 NY 432; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Morin v Foster, 45 NY2d 287.)

      Stroock & Stroock & Lavan LLP, New York City {Alan M.

      Klinger, Ernst H. Rosenberger and Beth A. Norton of counsel), for United Federation of Teachers, Local No. 2, American Federation of Teachers, AFL-CIO and others, amici curiae.
    I. Local Law Nos. 18 and 19 (2001) of the City of New York represent a procedural change, as permitted by the Taylor Law, and do not affect the terms and conditions of employment for emergency medical technicians and fire alarm dispatchers. (Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370.) II. Local Law Nos. 18 and 19 (2001) of the City of New York are not subject to mandatory referendum.
   OPINION OF THE COURT

Smith, J.

The Mayor of New York City challenges the validity of two local laws, passed by the City Council over his veto, that give certain fire department employees the status of “uniformed” fire service members for collective bargaining purposes. Like Supreme Court and the Appellate Division, we reject the Mayor’s challenge. We hold that the local laws are not preempted by State law, and that the Council had the power to enact them without a referendum.

Facts and Procedural History

Local Law Nos. 18 and 19 (2001) of the City of New York confer “uniformed” status on people employed by the New York City Fire Department as fire alarm dispatchers and emergency medical technicians (EMTs). The effect of the local laws is to require the Mayor to bargain with unions representing these employees, rather than with unions representing the majority of employees citywide, over such matters as overtime and “time and leave” rules. To make this understandable, we must summarize several features of the State and local legislation that governs collective bargaining with public employees.

In general, labor relations in the public sector in New York State are governed by the Taylor Law, Civil Service Law § 200 et seq. But the Taylor Law contains a local option provision, Civil Service Law § 212, which permits local governments to enact their own counterparts to certain sections of the Taylor Law, and thus to displace the Taylor Law to that extent. The State statute requires that the local laws be “substantially equivalent” to the “provisions and procedures” of the Taylor Law itself (Civil Service Law § 212 [1], [2]). As to New York City, however, the issue of substantial equivalence can be raised only in a declaratory judgment action brought by the Public Employment Relations Board (PERB) in New York County Supreme Court; unless and until such a challenge is brought and upheld, the City counterparts to Taylor Law provisions “shall be of full force and effect” (Civil Service Law § 212 [2]).

In 1967, the year of the Taylor Law’s enactment, New York City exercised its local option by adopting a local law known as the Collective Bargaining Law (CBL) (Local Law No. 53 [1967] of City of NY § 2, codified as Administrative Code of City of NY § 1173-1.0 et seq. [now § 12-301 et seq.)). Later the same year, the Mayor, in an executive order issued “pursuant to the New York City Collective Bargaining Law,” directed that there be citywide, rather than unit-by-unit, bargaining on certain subjects as to which citywide uniformity was thought especially important (Executive Order 52 of 1967 § 5 [a] [2], reprinted in City Record, Oct. 6, 1967, at 6341, 6342). Five years later, the substance of this provision of the Mayor’s order was incorporated, by local law (Local Law No. 1 [1972] of City of NY § 10), into the CBL itself. It is now codified as New York City Administrative Code § 12-307 (a) (2), which provides:

“matters which must be uniform for all employees subject to the career and salary plan, such as overtime and time and leave rules, shall be negotiated only with a certified employee organization, council or group of certified employee organizations designated by the board of certification as being the certified representative or representatives of bargaining units which include more than fifty percent of all such employees, but nothing contained herein shall be construed to deny to a public employer or certified employee organization the right to bargain for a variation or a particular application of any city-wide policy or any term of any agreement executed pursuant to this paragraph where considerations special and unique to a particular department, class of employees, or collective bargaining unit are involved” (emphasis added).

Thus, citywide collective bargaining is the general, though not invariable, rule as to “matters which must be uniform for all employees subject to the career and salary plan, such as overtime and time and leave rules.” The 1967 executive order, however, made “uniformed” employees an exception to this rule, and the exception, like the general rule, was added to the CBL by local law in 1972. Thus, New York City Administrative Code § 12-307 (a) (4) provides: “all matters, including but not limited to pensions, overtime and time and leave rules which affect employees in the uniformed police, fire, sanitation and correction services . . . shall be negotiated with the certified employee organizations representing the employees involved.”

No party in this case disputes the validity of the 1967 local law that adopted the CBL, the 1967 executive order issued under the CBL’s authority, or the 1972 local law incorporating provisions of the executive order in the CBL.

The local laws at issue here, adopted in 2001, expanded the definition of “employees in the uniformed . . . fire . . . service [ ].” They added to New York City Administrative Code § 12-307 (a) (4) language saying that, for purposes of that paragraph, “employees of the uniformed fire service shall also include” fire alarm dispatchers, EMTs and their supervisors. Thus, the 2001 local laws made the dispatchers and EMTs, like firefighters and police officers, exempt from section 12-307 (a) (2)’s requirement of citywide bargaining.

The 2001 local laws were passed over the veto of then-Mayor Giuliani, who responded by bringing this action for a declaratory judgment that the local laws are invalid, and an injunction against their enforcement. Supreme Court granted summary judgment in the Council’s favor, declaring the laws valid. The Appellate Division affirmed, with two Justices dissenting. The Mayor appeals as of right, pursuant to CPLR 5601 (a), and we now affirm.

Discussion

The Mayor argues (1) that Local Laws 18 and 19 of 2001 are preempted by the Taylor Law and (2) that they were enacted in violation of mandatory referendum provisions of the Municipal Home Rule Law and the New York City Charter. We reject both arguments.

I

As we mentioned above, the Taylor Law permits local governments to supersede certain of its provisions, so long as the provisions and procedures of the local legislation are “substantially equivalent” to the ones they supersede (Civil Service Law § 212). The Mayor does not argue here that Local Laws 18 and 19 fail the substantial equivalence test, no doubt because he lacks standing to make that argument; only PERB can chailenge New York City local laws on substantial equivalence grounds (Civil Service Law § 212 [2]).

The Mayor does argue, however, that the local laws are inconsistent with the Taylor Law’s definition of “agreement”: “the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization” (Civil Service Law § 201 [12]). It has been held, and the parties here do not dispute, that the Taylor Law prohibits local legislative bodies from usurping the executive’s prerogative to agree with unions on terms and conditions of employment (Matter of Doyle v City of Troy, 51 AD2d 845 [3d Dept 1976]). But these local laws do not violate that prohibition. They do not dictate the substantive terms of an agreement; they prescribe (as to certain issues) the procedure by which agreements may be reached—bargaining with the unions representing dispatchers and EMTs, rather than bargaining with unions representing a majority of employees subject to the citywide career and salary plan.

The regulation of bargaining procedures generally, and specifically the procedure by which bargaining units are determined, is a proper subject of local legislation. The Taylor Law provides, in Civil Service Law § 206 (1), that a local government “acting through its legislative body, is hereby empowered to establish procedures ... to resolve disputes concerning the representation status of employee organizations.” While this statute is not directly applicable here—the CBL has superseded it—it refutes the idea that procedures to determine the appropriate unit of bargaining are a subject beyond the reach of a local legislature.

The Mayor’s preemption argument proves too much. If these 2001 local laws, which expanded the definition of “uniformed” employees to include dispatchers and EMTs, are preempted, how could the 1972 local law that exempted uniformed employees in general from citywide bargaining be valid? For that matter, how could the same local law have provided for citywide rather than unit-by-unit bargaining on certain issues? And how could the original CBL, enacted by local law in 1967, have given the Mayor authority to provide by executive order for both the general rule and the exception?

The answer offered by the Mayor, and by the dissent, is that the 1967 executive order and the 1972 local law were based on an agreement negotiated between the Mayor and the unions involved. The dissent implicitly asserts that the City’s power to legislate in this area extends only to ratifying agreements the Mayor and the unions have already reached. But we see nothing in the Taylor Law, and nothing in any decision interpreting it, to suggest the existence of any such limitation on legislative authority; and we reject as unsound the principle that a legislative body’s power to pass laws can be conferred or withheld by the executive’s agreement, or failure to agree, with labor representatives on proposed legislation.

Local Laws 18 and 19 are not preempted by the Taylor Law.

II

Municipal Home Rule Law § 23 (2) (f) says: “Except as otherwise provided by or under authority of a state statute, a local law shall be subject to mandatory referendum if it . . . [ajbolishes, transfers or curtails any power of an elective officer.” Similarly, New York City Charter § 38 (5) provides: “A local law shall be submitted for the approval of the electors ... if it . . . [ajbolishes, transfers or curtails any power of an elective officer.” We hold that Local Laws 18 and 19 do not curtail any power of the Mayor within the meaning of these sections. We do not reach the question of whether the exception clause of Municipal Home Rule Law § 23 (2) applies.

The Mayor’s theory is that Local Laws 18 and 19 curtail his power because he has less flexibility in bargaining with unions than he would have if the laws had not been passed. Before the enactment of these local laws, the Mayor could insist on bargaining with citywide representatives over the overtime and time and leave rules of fire alarm dispatchers and EMTs, unless “special and unique” considerations called for a different approach (Administrative Code of City of NY § 12-307 [a] [2]). The 2001 local laws require the Mayor to bargain directly with the unions “representing the employees involved” over all terms of their employment (Administrative Code § 12-307 [a] [4]). But this kind of limitation on the Mayor’s freedom of action is not the sort of curtailment of power that triggers a mandatory referendum.

A great many local laws limit the actions the Mayor or another elected official may take. A local law requiring the recycling of solid waste prevents the Mayor from ordering the sanitation department to dispose of such waste less expensively (see Administrative Code § 16-305; Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 188 AD2d 415 [1st Dept 1992]); a local law suspending alternate side of the street parking on certain holidays prevents the Mayor from enforcing it on those days (see Administrative Code § 19-163); a local law requiring an office to be open at certain hours prevents the Mayor from closing it (see id. § 7-623). But the Municipal Home Rule Law and the City Charter cannot sensibly be read to subject all local laws of this kind to a mandatory referendum. If they were, there would be more referendums than any community could well manage.

The requirement of a referendum for legislation that “curtails any power of an elective officer” must be read as applying only to legislation that impairs a power conferred on the officer as part of the framework of local government. For example, a local law limiting the power of New York City’s Mayor to appoint commissioners, or to prepare a budget, or to create or abolish positions within his executive office would require a referendum (see NY City Charter §§ 6, 8 [f]; § 225 [a]). But, as a general rule, a law that merely regulates the operations of city government, in collective bargaining or in some other area, is not a curtailment of an officer’s power.

Matter of Slominski v Rutkowski (62 NY2d 781 [1984]) illustrates the distinction. In that case, the Erie County Comptroller challenged county legislation that prohibited the filling of vacancies in certain county offices in the absence of a certificate of necessity from the County Executive. The effect of the legislation was to prevent the Comptroller from doing something she could otherwise have done—fill vacancies in her office without getting a certificate of necessity. But we held the Comptroller’s powers had not been curtailed, and the referendum requirement of Municipal Home Rule Law § 23 (2) had not been triggered, because the powers given the Comptroller by the County Charter were unimpaired. We said: “the only power the County Charter gives [the Comptroller] is the power to fill positions in her office as those positions are approved. That is unchanged. She, and no one else, may appoint whomever she chooses to the vacancies” (62 NY2d at 785).

So here, the Mayor’s power in the New York City governmental structure is unimpaired. A local law prescribing a procedural rule for collective bargaining is not an encroachment on the Mayor’s role in City government. The limitation on his freedom to act is merely a consequence of legislative policymaking. By contrast, the cases the Mayor relies on all involved limitations on an elected officer’s structural authority (see Morin v Foster, 45 NY2d 287 [1978] [limitation on power to appoint county manager held to require referendum]; Matter of Fogarty v Warden, 191 Misc 916 [Sup Ct, Orange County 1948], affd 273 App Div 910 [2d Dept 1948], affd 297 NY 963 [1948] [limitation on power to dismiss city manager held to require referendum]; Matter of Heeran v Scully, 135 Misc 874 [Sup Ct, Rensselaer County 1930], affd 229 App Div 822 [3d Dept 1930], affd 254 NY 344 [1930] [adding members to board created by city charter held to curtail power of existing members]; Mayor of City of N.Y. v Council of City of N.Y., 280 AD2d 380 [1st Dept 2001] [limitation on Mayor’s authority to appoint members of police investigatory board held to require referendum]).

Local Laws 18 and 19 were within the power of the City Council to enact without a referendum.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Read, J. (dissenting).

The Taylor Law preempts Local Law Nos. 18 and 19 (2001) of the City of New York. The provisions of the Collective Bargaining Law (CBL) that the City Council amended by these local laws delineate the scope of collective bargaining, and were initially hammered out by the Mayor and the municipal unions at the bargaining table. Expansion of the scope of collective bargaining is not within the sphere of legislative authority conferred upon the Council by section 212 of the Civil Service Law. As a result, these CBL provisions may be altered by the Mayor and the unions in future negotiations, but not by the Council in local law. To grasp why this is so requires a rudimentary understanding of the now largely forgotten origin and history of what has become New York City Administrative Code § 12-307 (a) (2) and (4), and the relationship of these local laws to the Taylor Law.

The Tripartite Agreement

The City first endorsed a policy of public sector collective bargaining in the 1950s (see Michael Fox, Criteria for Public Sector Interest Arbitration in New York City: The Triumph of 'Ability to Pay’ and the End of Interest Arbitration, 46 Alb L Rev 97, 105 [1981]). By 1965, however, it had become apparent that the City did not have effective conflict-resolution procedures in place. That year, employees of the Department of Welfare conducted the first successful strike by municipal workers (id. at 106-107). The City’s attempt to invoke the Condon-Wadlin Act (see former Civil Service Law § 108 [prohibiting strikes by public employees and providing severe penalties for violations]) failed to end the work stoppage, and the City was forced to submit disputed issues to an impartial fact-finding panel (46 Alb L Rev at 107). This panel resolved the immediate controversy and, more importantly, required the Mayor to appoint a tripartite panel comprised of city officials, civil service union representatives and labor relations experts to study and recommend improvements in the City’s municipal labor relations procedures (id. at 107-108).

The tripartite panel’s report, issued on March 31, 1966, included a Memorandum of Agreement (Agreement) negotiated by the Mayor’s designees (the deputy mayor and the corporation counsel) on behalf of the City, and seven unions representing a majority of municipal workers (District Council 37, State, County and Municipal Workers’ Union, AFL-CIO; Uniformed Firemen’s Association, Local 94, AFL-CIO; Patrolmen’s Benevolent Association; Plumbers’ Union, Local 1, AFL-CIO; Building Service Employees’ Union, AFL-CIO; Local 832, International Brotherhood of Teamsters; and Superior Officers’ Council and Sergeants Benevolent Association of NY City Police Department). The Agreement set forth “procedures which the signatories . . . unanimously deem[ed] to be necessary and desirable for the effectuation of collective bargaining, and of the peaceful settlement of disputes, between the City and the organizations representing its employees.”

The signatories also “unanimously recommend [ed] that the substance of the provisions of the enclosed [Agreement] be enacted into law by an Executive Order . . . , and, to the extent necessary, by a Local Law, both of which shall be uniformly applicable to all organizations representing City employees.” Similarly, Section IX of the Agreement, entitled “Effective Date,” provided that “[t]he foregoing provisions and procedures shall not become effective unless and until they are enacted into law by an Executive Order and a Local Law as set forth above” (see Hanslowe, Labor Relations Law, 18 Syr L Rev 247, 252 [1966] [the Agreement “represent(ed) a milestone in the development of governmental labor relations through discussion and negotiation to be followed by ratification in the form of legislative and executive action” (emphasis added)]). At the time, of course, there was no statewide law granting public employees the right to form unions of their choosing, free from employer interference, and giving those unions the right to negotiate with the public employer over terms and conditions of employment.

Section II, entitled “Scope of Collective Bargaining,” created the so-called pyramid structure or two-tiered system of bargaining whereby the City bargained on issues such as wages with the unions representing career and salary plan employees, but bargained on citywide issues such as overtime and time and leave rules and pensions “with an employee organization or council or group of employee organizations representing more than 50% of all Career and Salary Plan employees.” The Agreement also provided that nothing about the requirement to negotiate certain issues citywide would “prevent the City from meeting with any employee organization representing employees who are affected for the purpose of hearing their views and proposals on such city-wide matters or pensions.” Section II also specified that “[t]he City shall continue to bargain on all matters within the scope of collective bargaining with organizations representing employees in the Police, Fire, Sanitation and Correction Services.”

Local Law 53 and Executive Order 52 of 1967

To implement the Agreement, the Council adopted Local Law No. 53 (1967) of the City of New York, effective September 1, 1967, which created the Office of Collective Bargaining, including a seven-member Board of Collective Bargaining (two City representatives, two labor representatives, and three impartial members), and the Board of Certification. The salaries and expenses of the impartial members of the Board of Collective Bargaining were shared by the City and the Municipal Labor Committee, “an association known by that name created pursuant to a memorandum dated March thirty-first, nineteen hundred sixty-six [i.e., the Agreement], as amended, signed by representatives of the city and certain employee organizations” (former Administrative Code § 1173-3.0 [k], as added by Local Law 53 § 2).

Local Law 53 provided procedures for the final determination of representation questions; the mediation of contract negotiations; and impasse panels. It also set up procedures for the arbitration of grievances; for interpretation of its provisions; for final determinations as to the scope of collective bargaining under the terms of the applicable executive order, or the arbitrability of particular grievances; and for ascertaining if the City or a particular union had given full-faith compliance to the law’s requirements and obligations. As for the scope of bargaining, former section 1173-3.0 (m) of the Administrative Code stated that “[t]he term ‘matters within the scope of collective bargaining’ shall mean matters designated to be within the scope of collective bargaining by executive order” (emphasis added). In addition, former section 1173-4.0 (a) specified in relevant part that the Administrative Code’s provisions were “applicable only” to “[a]ll mayoral agencies and to the employees and employee organizations thereof, provided that the mayor elects by executive order to make such provisions applicable to all such agencies, [employees and employee] organizations” (emphasis added).

Concomitantly, the Mayor issued Executive Order 52 of 1967. Section 5, entitled “Matters Within the Scope of Collective Bargaining,” stated at section 5 (a) that the City would have the duty to bargain in good faith

“(2) with a certified employee organization, council or group of certified employee organizations designated by the Board of Certification as representing more than 50 per cent of all employees subject to the Career and Salary Plan, and only with such employee organization or organizations, on City-wide matters which must be uniform for all such employees, such as overtime, and time and leave rules. The terms agreed upon in such bargaining shall be applicable to and binding upon all such employees .... The foregoing shall not: (A) prevent the City from meeting with any other employee organization representing such employees for the purpose of hearing the views and requests of its members on such matters . . . ; or [be] construed to deny the City or a certified employee organization the right to bargain for a variation or a particular application of any city-wide policy or any term of an agreement executed pursuant to this Section 5 (a) (2) governing any City-wide matter, where considerations unique to a particular department, class of employees, or collective bargaining unit are involved.
“(3) with an employee organization, council or group of employee organizations designated by the Board of Certification as representing more than 50 per cent of all employees within a department on matters which must be uniform for all employees in the department, but only if such organization, or in the case of a group or council, each organization in such group or council, has been previously certified as a City-wide bargaining representative for an appropriate bargaining unit. The foregoing shall not prevent the City from meeting with any other employee organization representing such employees for the purpose of hearing the views and requests of its members on such matters ....
“(4) with certified employee organizations representing employees in the uniformed forces of the police, fire, sanitation and correction services on City-wide matters, including, but not limited to pensions, overtime, and time and leave rules insofar as such issues affect the particular service involved.
“(5) on pensions for employees other than those in the uniformed forces referred to in Section 5 (a) (4) herein, only with a certified employee organization, council, or group of certified employee organizations designated by the Board of Certification as representing more than 50 per cent of all employees included in the pension system involved” (Executive Order 52 of 1967, dated Sept. 29, 1967, reprinted in City Record, Oct. 6, 1967, at 6342 [emphasis added]).

Thus, Executive Order 52 implemented two-tiered bargaining and exempted police, fire, sanitation and correction services employees from it, as agreed to by the Mayor and the unions in 1966 in the Agreement. Executive Order 52 repeated the language from the Agreement to the effect that citywide bargaining would not prevent the City from meeting with any union for purposes of hearing its views and proposals on citywide matters or pensions; and declared that its provisions respecting citywide bargaining should not be construed to deny the City or any union the right to bargain for a “variation or a particular application” of a city wide policy or term of agreement “where considerations unique to a particular department, class of employees, or collective bargaining unit are involved.”

The Taylor Law and Chapter 24 of the Laws of 1969

In 1967, the Legislature adopted the Public Employees’ Fair Employment Act, commonly known as the Taylor Law (L 1967, ch 392, adding Civil Service Law § 200 et seq.), a pioneering piece of legislation that significantly changed the relationship between public employees and employers in New York. Most provisions of the Taylor Law took effect on September 1, 1967, or contemporaneously with the culmination of the City’s efforts to implement the Agreement through Local Law 53 and Executive Order 52.

The enacted legislation was a compromise version of a bill based on recommendations in the Final Report of the Governor’s Committee on Public Employee Relations (the Taylor Committee), submitted to Governor Rockefeller on March 31, 1966 (see Lefkowitz, Osterman and Townley, Public Sector Labor and Employment Law, at 23 [2d ed]). “The Democratic [A]ssembly was concerned primarily with preserving the right of New York City to institute a labor relations program for its employees, which had been developed by its own committee of experts,” the tripartite panel, and so, “as part of its price for passing the bill based upon the Taylor Committee report,” the Assembly “obtained an amendment that authorized local governments to enact local laws substantially equivalent to the state law” (id.).

This amendment was Civil Service Law § 212, which allows localities to establish substantially equivalent provisions and procedures, to be administered by a local version of the Public Employment Relations Board (PERB), or a “mini-PERB,” such as the City’s Office of Collective Bargaining. Numerous provisions of the Taylor Law may not be superseded by local law, though. Section 212 (1) lists those statutes that remain directly applicable in mini-PERB jurisdictions, and section 201 (definitions) is among them. As a result, only those statutes not listed in section 212 (1) may be replaced or modified by substantially equivalent local laws. These are generally sections 206 and 207 (representation disputes), 209 (impasse resolution), and 210 (3) (strike prohibitions involving the forfeiture of a union’s checkoff privileges). In addition, Civil Service Law § 205 (5) (d) confers improper practice jurisdiction upon the Board of Collective Bargaining (see generally, Lefkowitz at 796-797).

Municipal employee strikes continued to plague the City during the late 1960s, which eventually caused the Legislature to question the efficacy of the City’s collective bargaining procedures. The Legislature ultimately enacted chapter 24 of the Laws of 1969, which required the City to make a report by August 1, 1969, to the leaders of the Senate and Assembly and PERB “of the steps taken and a plan designed to bring [its] practices . . . into substantial equivalence with [the Taylor Law],” particularly focusing on “making effective the jurisdiction of the office of collective bargaining, the need for a specified final step in the impasse procedures, and the relation of negotiations and impasse procedures to budget submission dates” (see L 1969, ch 24, § 11). If the City failed to submit a timely report, it would lose the benefit of Civil Service Law § 212 (2), which allowed the City’s local law provisions supplanting statutes not enumerated in Civil Service Law § 212 (1) to remain effective without PERB’s prior approval. This legislation also directed PERB to submit to the leaders of the Senate and Assembly by December 1, 1969, “its comments and recommendations regarding” the City’s report and plan (L 1969, ch 24, § 11).

In fact, on August 1, 1969, the City issued a document entitled “Report Submitted Pursuant to Chapter 24, Laws of 1969, Designed to Bring New York City’s Labor Relations Practices into Substantial Equivalence with the Public Employees’ Fair Employment Act.” This report’s recommendations, which addressed the three topics called out by the Legislature, were generally approved by PERB.

Local Law 1 of 1972

On December 29, 1971, the New York City Council Committee on Civil Service and Labor reported that the bill subsequently enacted as Local Law No. 1 (1972) of the City of New York, which was effective on January 12, 1972, “was introduced at the request of the Office of Collective Bargaining and represents the joint and cooperative effort by the Municipal Labor Committee, The City of New York, and the Office of Collective Bargaining” (2 Proceedings of Council of City of NY, from July 13, 1971 to Dec. 29, 1971, at 678). According to the Committee, the bill

“amend[ed] the [CBL] so that the law, as originally enacted by [the] Council in 1967, together with the amendments as set forth herein, is in substantial equivalence with . . . ‘The Taylor Law’[] This action complies with the mandate of the Taylor Law. In addition, the amendments reflect the four years of experience of the OCB.
“The Taylor Law[,] enacted by the State Legislature in 1967, contained a ‘home rule’ provision which authorized local public employers, through their legislative bodies, to adopt provisions and procedures concerning a labor relations program and policy affecting the employees of local public employers. It was pursuant to this home rule provision that the Council enacted Local Law 53—1967.
“In 1969, the State Legislature amended the Taylor Law requiring the Mayor ... to submit to the Legislature a report of the steps taken and a plan designed to bring the labor relations practices of The City of New York into substantial equivalence with the Taylor Law. This bill is based on the Mayor’s report [to PERB and the Legislature] and constitutes the plan designed to bring the City’s labor relations policies, including finality, into substantial equivalence with state law” (id.).

In sum, the Council ratified pursuant to Civil Service Law § 212 what the Mayor and the unions negotiated and what the State demanded from the Mayor to show substantial equivalence. As particularly relevant to this appeal, the Committee noted that the bill codified “substantial portions of Executive Order 52 including the duty to bargain and [the] scope of bargaining, with appropriate representatives” (id. [emphasis added]). In fact, Local Law 1 § 6 amended former section 1173-3.0 (m) of the Administrative Code to define the term “matters within the scope of collective bargaining” as “matters specified in section 1173-4.3 of this chapter.” This newly added section 1173-4.3 incorporated all the substantive provisions of section 5 of Executive Order 52 of 1967, which were grounded in the Agreement negotiated by the City and the unions in 1966. These provisions are now found in section 12-307 (a) (2) and (4) of the Administrative Code, which are at the heart of this appeal.

Taylor Law Preemption

Section 12-307 of the Administrative Code is entitled “Scope of collective bargaining; management rights.” Section 12-307 (a) (2)—which derives from former section 1173-4.3 (Local Law 1 of 1972 § 10), which, in turn, derives from Executive Order 52 of 1967, which, in turn, derives from the Agreement negotiated by the City and the unions in 1966—specifies that

“matters which must be uniform for all employees subject to the career and salary plan, such as overtime and time and leave rules, shall be negotiated only with a certified employee organization, council or group of certified employee organizations designated by the board of certification as being the certified representative or representatives of bargaining units which include more than fifty percent of all such employees, but nothing contained herein shall be construed to deny to a public employer or certified employee organization the right to bargain for a variation or a particular application of any city-wide policy or any term of any agreement executed pursuant to this paragraph where considerations special and unique to a particular department, class of employees, or a collective bargaining unit are involved.”

Section 12-307 (a) (4) of the Administrative Code—which also derives from former section 1173-4.3 (Local Law 1 of 1972 § 10), which, in turn, derives from Executive Order 52 of 1967, which, in turn, derives from the Agreement negotiated by the City and the unions in 1966—specifies that “all matters, including but not limited to pensions, overtime and time and leave rules which affect employees in the uniformed police, fire, sanitation and correction services, . . . shall be negotiated with the certified employee organizations representing the employees involved.” In Local Laws 18 and 19 of 2001, the Council amended section 12-307 (a) (4) to include fire alarm dispatchers, EMTs and advanced EMTs and their respective supervisors within the definition of employees in the uniformed services. This changes the scope of collective bargaining and takes off the bargaining table the question of whether or not “considerations special and unique” to these classes of employees justify a variation from the citywide agreement regarding pensions, overtime and time and leave rules. In enacting Local Laws 18 and 19, the Council declared that special and unique considerations exist, allowing these employees to make an end run around collective bargaining. The Mayor correctly protests that the Council may not do this because section 201 (12) of the Civil Service Law (Taylor Law) confers upon him the exclusive authority to negotiate with municipal unions on the City’s behalf, and local law may not supersede this authority (see Civil Service Law § 212 [1]; see also Matter of Yonkers P.B.A. [City of Yonkers], 23 PERB If 4519, at 4540 [1990] [city’s mayor properly refused to implement pension benefit agreed to by city’s legislative body and PBA and not negotiated or otherwise endorsed by mayor because “a public employer’s duty to negotiate rests not with its legislative body but with its chief executive officer, and any intrusion into the negotiations process by the legislative body must be by agreement of the parties”]).

The Council contends that the changes to the CBL brought about by Local Laws 18 and 19 are “merely procedural” and do not confer substantive terms and conditions of employment. To say that the scope of collective bargaining is merely procedural is to confer upon the Council powers and authority vested with the Mayor under section 201 (12) of the Civil Service Law. The Mayor has certain management rights allowing him to enforce limitations on the scope of collective bargaining. He is free to alter the scope of collective bargaining during negotiations with public employees, although he may not, of course, limit it more narrowly than the “terms and conditions of employment” outlined in the Taylor Law. The Mayor may negotiate away a management right by, for example, expanding the job titles exempt from the citywide agreement.

The majority intimates that the Council may similarly cede a management right because Local Laws 18 and 19 have something to do with “the procedure by which bargaining units are determined,” which is “a proper subject of local legislation,” citing Civil Service Law § 206 (1) (addressing disputes concerning the representation status of employee organizations) (majority op at 31). Supreme Court similarly tried to characterize Local Laws 18 and 19 as somehow substituting for Civil Service Law § 207, a Taylor Law provision that a local legislature may supplant with its own substantially equivalent provisions and procedures. But Local Laws 18 and 19 do not address representation status as commonly understood. Disputes over representation status generally relate to which job titles properly belong in a bargaining unit, or which union properly represents a unit (see McKinney’s Cons Laws of NY, Book 9, Civil Service Law § 207, Notes of Decisions). Further, as the majority concedes, the CBL otherwise supersedes the Taylor Law’s provisions for determining representation status. Importantly, section 12-309 (b) of the Administrative Code commits representation disputes to the Board of Certification, not the Council. Indeed, it is hard to imagine that any local law authorizing a legislative body (rather than a mini-PERB) to make a unit determination would ever pass muster as substantially equivalent to the Taylor Law.

Of course, the Taylor Law does not require a mini-PERB jurisdiction to develop its substantially equivalent provisions and procedures through collective bargaining. Historically—and uniquely—this is simply what the City chose to do to preserve the delicate balance in the complex relationships and competitive interests typifying its public sector labor management relations. As a result, section 212 may very well authorize the Council unilaterally to enact a local law amending the Administrative Code’s provisions and procedures in those areas where this statute specifically grants the power to legislate (e.g., representation status or impasse procedures). In short, I am not “implicitly asserting] that the City’s power to legislate . . . extends only to ratifying agreements the Mayor and the unions have already reached” (majority op at 31-32). I am asserting, however, that Local Laws 18 and 19 do not fit within any of those areas where section 212 authorizes the Council to act on its own. Specifically, they have nothing to do with the only such area even alluded to by Supreme Court and the majority—representation status.

The majority also argues that the Mayor’s preemption argument “proves too much” because if the 2001 local law is preempted, the two-tiered system and its exemptions must have been bogus to begin with (majority op at 31). This proposition springs from the false premise that the scope of bargaining derives its existence and force from local law originating with the Council. In order to explain away a plainly inconsistent fact—that the two-tiered system and its exemptions were in place from 1967 through the end of 1971 without benefit of local law—the majority advances the novel notion that this was only because the original CBL “author[ized]” the Mayor “to provide by executive order for both the general rule and the exception” (majority op at 31). But Local Law 53 of 1967 simply deferred to the Mayor, stating that “matters within the scope of collective bargaining” were to embrace whatever he designated by executive order. Mayors had exercised authority over the scope of collective bargaining long before 1967. Indeed, Executive Order 52 of 1967 superseded Executive Order 49 of 1958, which granted various rights to employees, including the right to engage in collective bargaining (see generally Ruffo, The Residue of Sovereignty in New York Public Employment, 39 Alb L Rev 165, 174 [1975]). The two-tiered system and its exemptions, expressed in section 5 of Executive Order 52, were not rooted in the original CBL. Instead, they were called for by provisions of the Agreement negotiated between the Mayor and the unions in 1966, which the Council later ratified when it incorporated section 5 into Local Law 1 of 1972.

This was once widely acknowledged. As Eric J. Schmertz, a preeminent labor law expert and an original impartial member of the Board of Collective Bargaining observed: “Certain provisions of the [CBL] are the result of collective bargaining relations between the City and its employees which existed prior to the enactment of the [CBL]. One of these is a section of the [CBL] which creates various levels of bargaining” (Schmertz, The New York City Fire Department Under the New York City Collective Bargaining Law, 3 Hofstra L Rev 605, 611 [1975] [emphasis added], citing former Administrative Code § 1173-4.3).

The unions also once recognized that the Council did not have the authority unilaterally to amend section 12-307 of the Administrative Code to expand the definition of employees in the uniformed services. When the union representing district attorney investigators was frustrated in its efforts to slip free of the citywide agreement, it turned to the Legislature for relief. In 1989, the Legislature amended section 12-307 of the Administrative Code so as to include district attorney investigators among the employees in the uniformed services (see Budget Report on Bills, Bill Jacket, L 1989, ch 776, at 18 [recommending veto because measure is “an attempt to legislatively attain what was not successfully negotiated in the collective bargaining process”]). To the dismay of a succession of Mayors, the Legislature may enact legislation that trumps a Mayor’s position in collective bargaining. Until the majority’s decision today, the Council was not similarly empowered.

In sum, the Taylor Law legitimizes and protects agreements collectively bargained between a public employer and a public employee union, whether or not the agreement’s terms, or some of them, are also recited in statute or local law (see Civil Service Law §§ 204, 204-a). The majority concludes, however, that if a legislative body ratifies an agreement (here, the collectively bargained provisions establishing the two-tiered system), a fortiori, it must be empowered subsequently to amend what it has ratified (here, Local Laws 18 and 19). This proposition conflicts with the Taylor Law. For example, after the State finishes collective bargaining over a new contract with its public employee unions, the Legislature routinely amends the Civil Service Law to implement the agreement by (at a minimum) setting out the salary schedules that the Governor and the unions have agreed upon (see e.g. L 2004, ch 103). No one would ever suggest that (absent some amendment to the Taylor Law) the Legislature might have authority to enact legislation revising these salary schedules unilaterally because they were initially ratified in legislation (see Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 78 NY2d 143 [1991] [recognizing role of Legislature in ratifying collective bargaining agreements and holding that, after having once ratified multiyear agreement, Legislature may not subsequently enact legislation altering negotiated payroll schedule even though annual appropriations are required]). Similarly, the Council may not expand the exemptions from the citywide agreement just because it codified in local law the scope of bargaining provision that the Mayor and the unions agreed upon at the bargaining table.

As the Mayor laments, Local Laws 18 and 19 have put into play rights and obligations considered settled for nearly 40 years. Indeed, their enactment in 2001 likely signals the demise of the two-tiered system: in 2005, the Council adopted Local Law No. 56 (2005) of the City of New York to list numerous additional job titles in various departments, which the Council unilaterally deemed exempt from the citywide agreement. Because the Taylor Law prohibits the Council from operating as a freelance negotiator at liberty to make concessions on the scope of bargaining at the Mayor’s expense, I respectfully dissent.

Chief Judge Kaye and Judges Ciparick, Graffeo, Pigott and Jones concur with Judge Smith; Judge Read dissents in a separate opinion.

Order affirmed, with costs.

      . Relatedly, the Board of Estimate excluded these uniformed services from the career and salary plan when first adopting it in 1954 (see Journal of Proceedings of Meeting of Board of Estimate, July 9, 1954, at 10225 [excluding from career and salary plan “(p)ositions in the uniformed forces of the Police, Fire, Sanitation and Correction Services”]).

      . Local Law No. 2 (1972) of the City of New York, which also became effective on January 12, 1972, cured what the State considered to be perhaps the major deficiency in the City’s collective bargaining procedures by making an impasse panel’s recommendations final and binding.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [874 NE2d 723, 842 NYS2d 759]
    Glenford Morris, Appellant, v Pavarini Construction et al., Respondents. (And a Third-Party Action.)
    Argued June 6, 2007;
    decided July 2, 2007

      POINTS OF COUNSEL

      Sacks and Sacks, LLP, New York City (Scott N. Singer of counsel), for appellant.
    I. The Appellate Division erred in dismissing plaintiffs claim under Labor Law § 241 (6). (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Dodge v City of Hornell Indus. Dev. Agency, 286 AD2d 902; Greenidge v HRH Constr. Corp., 279 AD2d 400; Baker v International Paper Co., 226 AD2d 1007; Corsaro v Mt. Calvary Cemetery, 227 AD2d 957; Corsaro v Mt. Calvary Cemetery, 214 AD2d 950; Gielow v Coplon Home, 251 AD2d 970; Favia v Weatherby Constr. Corp., 26 AD3d 165; Alvia v Teman Elec. Contr., 287 AD2d 421.) II. Plaintiffs claim under Labor Law § 200 should be reinstated. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Rice v Board of Educ. of City of N.Y., 302 AD2d 578; Lombardi v Stout, 80 NY2d 290; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138; Freitas v New York City Tr. Auth., 249 AD2d 184.)

      London Fischer LLP, New York City (Daniel Zemann, Jr., Anthony D. Capasso and Daniel P. Mevorach of counsel), for respondents.
    I. Plaintiffs Labor Law § 241 (6) claim predicated upon 12 NYCRR 23-2.2 (a) fails because that rule only applies to forms and not their preconstruction components. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Gielow v Coplon Home, 251 AD2d 970; Corsaro v Mt. Calvary Cemetery, 227 AD2d 957; Monroe v City of New York, 67 AD2d 89; Rodriguez v New York City Hous. Auth., 209 AD2d 260; Measom v Greenwich & Perry St. Hous. Corp., 268 AD2d 156, 95 NY2d 959; Corsaro v Mt. Calvary Cemetery, 214 AD2d 950; Corsaro v Mt. Calvary Cemetery, 258 AD2d 969.) II. 12 NYCRR 23-2.2 (a) is not sufficiently specific to support a claim under Labor Law § 241 (6). (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Hassett v Celtic Holdings, 7 AD3d 364; Petrocelli v Tishman Constr. Co., 19 AD3d 145; Maday v Gabe’s Contr., LLC, 20 AD3d 513; Sparkes v Berger, 11 AD3d 601; Schwab v A.J. Martini, Inc., 288 AD2d 654; Piazza v Frank L. Ciminelli Constr. Co., Inc., 2 AD3d 1345.) III. Plaintiffs Labor Law § 200 claims are not before the Court. (Kraska v Beck, 277 App Div 836; Hecht v City of New York, 60 NY2d 57; Graubard Mollen Dannett & Horowitz v Mos

      kovitz, 86 NY2d 112; New York Cent. R.R. Co. v Beacon Milling Co., 293 NY 218; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539.)
   OPINION OF THE COURT

Smith, J.

The issue is whether a Labor Department regulation requiring “forms” to be “braced or tied together so as to maintain position and shape” (12 NYCRR 23-2.2 [a]) has been violated. We hold that the question cannot be answered on this record.

Facts and Procedural History

Plaintiff, a carpenter, was working on the construction of a new building in Manhattan when a large object, which he says was a “form,” fell on and injured his hand. The record shows that the word “form” can refer to several different things, but for present purposes it is a kind of mold used in the fabrication of concrete walls. Such a form is made of two metal sides with a space between them, into which liquid concrete is poured; the form is removed after the concrete has hardened.

The only description in the record of the object that fell on plaintiff is from his deposition; the description is neither clear nor complete. The object was not a completed form, but was part or all of one of a form’s sides. The side was constructed of metal plates, estimated by plaintiff to be two feet wide and four feet long, joined together in a way plaintiffs testimony does not explain. Plaintiff testified that the wall that was to be shaped using the form would be very large—“like 30 feet high and maybe the same amount in length”—and so presumably the side of the form was, or was to be, of at least that size.

Plaintiff sued the construction manager and the owner of the premises, claiming among other things that the object that fell on him was rendered unsafe by the violation of a Labor Department regulation governing concrete work and that defendants were therefore liable for his injuries under Labor Law § 241 (6). Supreme Court dismissed his other claims, but denied defendants’ motion for summary judgment dismissing the Labor Law § 241 (6) claim. On defendants’ appeal, the Appellate Division reversed and ordered the Labor Law § 241 (6) claim dismissed. We granted leave to appeal, and now reverse the Appellate Division’s order and remit the case to Supreme Court for further proceedings.

Discussion

Defendants did not direct or control the work that plaintiff was doing when he was injured. Thus, they can be liable to him only if Labor Law § 241 (6) imposes on them a nondelegable duty, making them liable for the conduct of others. Labor Law § 241 (6) says:

“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.”

This statute, we have explained, is, “in a sense, a hybrid” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503 [1993]). Its first sentence merely reiterates common-law standards of care, and thus cannot be a basis for civil liability by persons who are not themselves negligent; the first sentence “cannot by itself be relied upon as the source of an owner’s or general contractor’s nondelegable duty” (id. at 504). The second sentence, however, requiring owners and contractors to comply with rules of the Commissioner of Labor, does create a nondelegable duty—but only where the regulation in question contains a “specific, positive command[ ]” (Allen v Cloutier Constr. Corp., 44 NY2d 290, 297 [1978]), not where the regulation itself, using terms like “adequate,” “effective,” “proper,” “safe,” or “suitable,” merely incorporates “the ordinary tort duty of care” (Ross, 81 NY2d at 504).

Thus, plaintiff here can recover only if he shows a violation of a specific regulatory requirement. The regulation he relies on is 12 NYCRR 23-2.2 (a), which says in relevant part: “Forms . . . shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.”

The words “structurally safe” and the adverb “properly” are not specific enough to be a basis for Labor Law § 241 (6) liability, but the words “braced or tied together so as to maintain position and shape” impose more specific requirements. Plaintiff has alleged that those requirements were violated. Defendants assert, and the Appellate Division held, that there was no violation.

The gist of defendants’ argument is that the regulation is inapplicable here because it cannot apply to anything but a completed form. It does not make sense, defendants say, to require one side of a form to be “braced or tied together so as to maintain position and shape.” Plaintiff disagrees, relying on the affidavit of an engineer; the affidavit uses the words “metal concrete forms” to refer to objects of the kind that injured plaintiff, and says “[t]he metal concrete forms could have been tied together via wood or straps or both to secure the metal forms to each other and provide stability.” Plaintiffs engineer offers no further explanation of what he says should have been done; defendants submitted no expert testimony.

It was premature for the Appellate Division to grant summary judgment on this record. The interpretation of the regulation presents a question of law, but the meaning of specialized terms in such a regulation is a question on which a court must sometimes hear evidence before making its determination (see Millard v City of Ogdensburg, 274 AD2d 953, 954 [4th Dept 2000]). Here, a more complete record is necessary, both as to the nature of the object that caused the injury and the opinions of those expert in the construction of concrete walls as to whether the words of the regulation can sensibly be applied to anything but completed forms.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for proceedings consistent with this opinion.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order reversed, etc.


author: Chief Judge Kaye.

text:
    [876 NE2d 898, 845 NYS2d 212]
    Reliance Insurance Company, Appellant, v PolyVision Corporation, Formerly Known as Information Display Technology, Respondent. Sovereign Commercial Group, Inc., Third-Party Plaintiff-Respondent; Pierce & Stevens Corporation et al., Third-Party Defendants.
    Argued September 5, 2007;
    decided October 11, 2007

      POINTS OF COUNSEL

      Post & Schell, PC. (Gary A. Wilson and John W. Dornberger of the Pennsylvania bar, admitted pro hac vice, of counsel), for appellant.
    I. CPLR 205 (a) applies to actions by individuals and corporations. (Chase Manhattan Bank v Wolowitz, 272 AD2d 428; Mendez v Kyung Yoo, 23 AD3d 354; Freedman v New York Hosp. Med. Ctr. of Queens, 9 AD3d 415; McGuire v Southside Hosp., 301 AD2d 505; George v Mt. Sinai Hosp., 47 NY2d 170; Krainski v Sullivan, 208 AD2d 904; Ballav v Deepdale Gen. Hosp., 196 AD2d 520; Seidensticker v Huntington Hosp., 194 AD2d 718; Mingone v State of New York, 100 AD2d 897.) II. The fundamental purpose of CPLR 205 (a) is served by permitting Reliance Insurance Company to recommence. (Gaines v City of New York, 215 NY 533; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514; Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59; Dreger v New York State Thruway Auth., 81 NY2d 721; Fleming v Long Is. R.R., 72 NY2d 998; Parker v Mack, 61 NY2d 114; Carrick v Central Gen. Hosp., 51 NY2d 242; Matter of Morris Invs. v Commissioner of Fin. of City of N.Y., 69 NY2d 933; George v Mt. Sinai Hosp., 47 NY2d 170; Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160.)

      Bivona & Cohen, P.C., New York City (Anthony McNulty and Michael C. Modansky of counsel), and Gallagher, Gosseen, Faller & Crowley, Garden City (James F. Gallagher of counsel), for respondent.
    Contrary to appellant’s arguments, this Court has not and should not condone allowing this lawsuit in federal court, once dismissed and then time-barred in state court, under appellant’s “same party” theory and its policy explanations advanced to further fundamental purposes of this statute. (Graziano v Pennell, 371 F2d 761; Gaines v City of New York, 215 NY 533; Andrea v Arnone, Hedin, Casker, Kennedy & Drake,

      Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514; Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59; Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Quinn v Guerra, 26 AD3d 874; Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160; Hakala v Deutsche Bank AG, 343 F3d 111; Allaway v McGinnis, 362 F Supp 2d 390.)

      Costello Shea & Gaffney LLP, New York City (Steven E. Garry of counsel), for third-party plaintiff-respondent.
    I. In order to obtain the benefit of CPLR 205 (a), a party must establish that it is the same plaintiff (or its representative) whose claims were dismissed in the prior action. (Gaines v City of New York, 215 NY 533; Streeter v Graham & Norton Co., 263 NY 39.) II. The rules governing statutory construction mandate that this Court answer the certified question in the negative. (People v Finnegan, 85 NY2d 53; Matter of Tristram K., 36 AD3d 147; Morales v County of Nassau, 94 NY2d 218; Matter of Secor v City of New York, 13 Misc 3d 1220[A], 2006 NY Slip Op 51924[U].) III. The cases cited by Reliance Insurance Company in its attempt to obtain the benefit of CPLR 205 (a) do not support its argument. (Chase Manhattan Bank v Wolowitz, 272 AD2d 428; Krainski v Sullivan, 208 AD2d 904; Freedman v New York Hosp. Med. Ctr. of Queens, 9 AD3d 415; McGuire v Southside Hosp., 301 AD2d 505; Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Brown v Huntington Med. Group, 238 AD2d 367; Ballav v Deepdale Gen. Hosp., 196 AD2d 520; Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160; Matter of Rochester Community Sav. Bank v Board of Assessors of City of Rochester, 248 AD2d 949.)
   OPINION OF THE COURT

Chief Judge Kaye.

In this protracted dispute between a construction surety and the suppliers of allegedly deficient materials, the United States Court of Appeals for the Second Circuit asks us to determine whether CPLR 205 (a)—which, in appropriate instances, adds a six-month grace period to the statute of limitations—permits a corporation to refile an action originally commenced in the name of a different, related corporate entity and subsequently dismissed for naming the wrong plaintiff. We conclude that it does not.

Background

In 1987, the Lindenhurst School Board contracted with Park Construction to perform window and curtain wall replacement at the Lindenhurst Senior High School and Junior High School. Plaintiff Reliance Insurance Company (RIC), a Pennsylvania company, issued two bonds insuring Park’s performance of those projects. During this same period, Reliance Insurance Company of New York (RNY), allegedly at the time a wholly-owned New York subsidiary of RIC, issued similar bonds with the same obligee—the Lindenhurst School District—to ensure performance of a different elementary school construction project.

In 1988, Park filed for bankruptcy and RIC assumed responsibility for completing the high school construction projects. RIC also succeeded to Park’s rights under its existing contracts, including a 1987 agreement in which defendant PolyVision agreed to furnish several hundred insulated metal curtain wall panels for installation at the Lindenhurst Senior High School.

In 1990, RIC learned that these panels had prematurely begun showing signs of deterioration. The School Board asked that they be replaced, and RIC purchased new panels to complete the job. In 1994, suit for the faulty panels was commenced in state Supreme Court against PolyVision. For unknown reasons, RNY (the New York corporation) brought the action instead of the proper plaintiff, RIC. The case progressed slowly over the next decade, with certain documents exchanged but no depositions taken. Instead, these 10 years were marked by motion practice and amended complaints by RNY. RIC, however, never attempted to enter the action. The mistake in naming RNY as plaintiff appears to have been revealed during attempted intervention by a former subcontractor claiming to have inherited the claim against PolyVision.

The Appellate Division ultimately rejected the intervention, holding: “It is undisputed that this action was commenced by the wrong party; the correct plaintiff is the named plaintiff’s parent corporation [RIC]” (2 AD3d 701, 702 [2d Dept 2003]). Thereafter, in 2004, PolyVision successfully sought dismissal of the complaint on the ground that RNY was not the real party in interest.

RIC then commenced the present action in the Federal District Court for the Eastern District of New York on diversity grounds, alleging that it was the surety entitled to reimbursement for the faulty panels and that, under the savings provision of CPLR 205 (a), the action was timely commenced within six months of the prior action’s dismissal. PolyVision moved to dismiss on statute of limitations grounds, among others, arguing that RIC as a new, different plaintiff was not entitled to the benefit of CPLR 205 (a).

The District Court granted the motion to dismiss, holding that 205 (a) was not available to a different corporate entity that was not the original plaintiff. On appeal, the Second Circuit recognized that an “unresolved, important, and determinative issue of state law is central to this case” and certified the following question for our review: “Does New York CPLR § 205(a) allow a corporation to refile an action within six months when a previous, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity, and has been dismissed for naming the wrong plaintiff?” (474 F3d 54, 60 [2007].)

Discussion

Tracing its roots to seventeenth century England, the remedial concept embodied in CPLR 205 (a) has existed in New York law since at least 1788 (see Gaines v City of New York, 215 NY 533, 537-538 [1915]). In its current incarnation, CPLR 205 (a) provides: “If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

The other requirements of the section having been met here— the original action was timely commenced and terminated only for failure to name the proper party, and the new action is based on the same occurrences—the sole issue before us is whether CPLR 205 (a) allows for commencement of the new action by an entity that is different from, but related to, the original corporate plaintiff. As the Second Circuit observed, this is an open, important issue which will determine not only the pending case but also future cases.

Turning first, as we must, to the text of the statute, we note that the benefit provided by the section is explicitly, and exclusively, bestowed on “the plaintiff” who prosecuted the initial action. Only if “the plaintiff” dies, and his or her cause of action survives, may the executor or administrator of a deceased plaintiffs estate commence a new action based on the same occurrence. Outside of this representative context, we have not read “the plaintiff’ to include an individual or entity other than the original plaintiff. In George v Mt. Sinai Hosp. (47 NY2d 170 [1979]), we permitted a suit to proceed under section 205 (a) even though it had been improperly commenced in the decedent’s own name after her death and then properly recommenced in the administratrix’s name after the statute of limitations had expired. We observed, however, that “[u]sually, of course, the fact that one party commenced an action which is subsequently dismissed, will not serve to justify application of [CPLR 205 (a)] so as to support a later action by a different claimant” {id. at 179). Similarly, in Streeter v Graham & Norton Co. (263 NY 39, 44 [1933]), we noted: “To grant the right conferred by [the statute] to a different party plaintiff, representing in part different interests, would require the placing of a construction upon the section plainly beyond its intent and purpose.”

RIC acknowledges that it is a different party plaintiff but asserts that, as RNY’s parent corporation, it is not entirely different; that while we have never before permitted a substitution of corporate plaintiffs, we also have never precluded it; and that the section must be read generously to advance its remedial purpose. All true, but for the following reasons of policy and precedent we reject RIC’s conclusion.

Pivotal here is that, unlike the scenario in George, RIC is seeking to enforce its own, separate rights, rather than the rights of the plaintiff in the original action. We agree with the conclusion of the District Court that “[t]he common thread running through cases applying CPLR 205 in cases where the error in the dismissed action lies only in the ‘identity’ of the plaintiff, is the fact that it is the same person or entity whose rights are sought to be vindicated in both actions” (390 F Supp 2d 269, 273 [ED NY 2005]). As that court aptly stated, “the plaintiff in the new lawsuit may appear in a different capacity, such as a duly appointed administrator, but the identity of the individual on whose behalf redress is sought, [must] remain[ ] the same” {id.). That is the situation the Legislature addressed in CPLR 205 (a), but that is not the case here. RIC is not RNY in a different capacity.

To allow RIC to proceed also would open a new tributary in the law, presumably available to individuals as well as corporations, and breathe life into otherwise stale claims—some, like this one, going back nearly 20 years. The diligent corporate suitor, represented by counsel, is of course well advised to operate with the minimal care necessary to determine, before bringing suit, which of its family members has been wronged. That serves the corporation’s interests as well as the broader interests served by the statute of limitations. In the present case, the bonds naming RIC, rather than RNY, are part of the record.

We are, moreover, mindful of the potential ramifications of a rule allowing a “different, related corporate entity” the benefit of the statutory grace period, not knowing precisely what that means or portends. What may be a genuine corporate twin or alter ego in one case could be a far-flung affiliate in another. Under these circumstances, we prefer to read CPLR 205 (a) as it was written by the Legislature and has consistently been applied by this Court.

Accordingly, the certified question should be answered in the negative.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.


author: Read, J.

text:
    [876 NE2d 903, 845 NYS2d 217]
    Linda A. Stark, Esq., Respondent, v Molod Spitz DeSantis & Stark, P.C., et al., Appellants.
    Argued September 4, 2007;
    decided October 16, 2007

      POINTS OF COUNSEL

      Molod Spitz & DeSantis P.C., New York City (Marcy Sonneborn of counsel), for appellants.
    Defendant did not waive arbitration. (Matter of Weinrott [Carp], 32 NY2d 190; Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91; Maross Constr. v Central N.Y. Regional Transp. Auth., 66 NY2d 341; Matter of Siegel [Lewis], 40 NY2d 687; Flynn v Labor Ready, 6 AD3d 492; Les Constructions Beauce-Atlas v Tocci Bldg. Corp. of N.Y., 294 AD2d 409; Sherrill v Grayco Bldrs., 64 NY2d 261; Matter of Zimmerman [Cohen], 236 NY 15; Denihan v Denihan, 34 NY2d 307.)

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac and Diane K. Toner of counsel), for respondent.
    Defendants manifested an intent to have the court settle the disputes by entering into the stipulation and by affirmatively engaging in motion practice. (Sherrill v Grayco Bldrs., 64 NY2d 261; Matter of Zimmerman [Cohen], 236 NY 15; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363; De Sapio v Kohlmeyer, 35 NY2d 402; Preiss/Breismeister Architects v Westin Hotel Co.-Plaza Hotel Div., 56 NY2d 787; Matter of Hosiery Mfrs. Corp. v Goldston, 238 NY 22; Matter of Haupt v Rose, 265 NY 108; Weiss v Weiss, 228 AD2d 366; Grenadeir Parking Corp. v Landmark Assoc., 294 AD2d 313; Figueroa v Flatbush Women’s Servs., 244 AD2d 453.)
   OPINION OF THE COURT

Read, J.

Beginning in 1996, plaintiff Linda A. Stark became an equity partner in defendant law firm, Molod Spitz DeSantis & Stark, EC. (now Molod Spitz & DeSantis). In 2000, plaintiff withdrew as an equity partner and became a contract partner under the terms of an employment agreement that she negotiated with the firm. The agreement provided for either party to terminate it upon 60 days’ written notice. Further, “all controversies and claims” arising out of the “transaction^] contemplated by” the agreement or its “construction, performance or breach” were to “be determined by binding arbitration.”

On April 10, 2003, the firm gave plaintiff notice of termination. On May 22, 2003, after she had allegedly removed files after business hours and arranged for individual representation of clients in several pending cases, the firm locked her out of its offices.

By order to show cause dated June 2, 2003, plaintiff brought what Supreme Court ultimately regarded as a special proceeding, asking for various forms of relief against the firm. Specifically, plaintiff sought to be substituted as counsel in certain identified pending personal injury lawsuits; to compel the firm to turn over files in these and any additional lawsuits in which the client requested substitution; to specify that the firm was to be reimbursed for disbursements already made in these lawsuits, but not until each case was finally resolved; to prohibit the firm from working on any files where the client chose plaintiff as counsel in lieu of the firm; to direct the firm to forward communications addressed to plaintiff and to safeguard her possessions at its offices until she retrieved them; to pay plaintiff her salary through June 13, 2003; to pay plaintiff for unused vacation time; and to reimburse plaintiff $1,850 for expenses incurred. The firm opposed the application and cross-moved, seeking imposition of retaining and charging liens, payment based on quantum meruit, the return of files, and reimbursement of $38,000 in disbursements. In its opposition papers, the firm cited the agreement’s arbitration clause, but did not move to compel arbitration.

Upon the return date of the order to show cause, plaintiff and the firm’s senior partner negotiated a stipulation of settlement. This handwritten “so-ordered” stipulation, dated June 17, 2003, promptly resolved disputes regarding pending cases in which plaintiff wished to continue to represent clients. The firm agreed to execute consents to change attorneys and to forward to plaintiff all files, communications and phone calls in the lawsuits identified in the order to show cause, as well as in any others where the client consented to a change of attorney; and plaintiff agreed to open a joint escrow account with the firm in the amount of $38,000 (less the disbursements in one specific matter) and to reimburse the firm from this account for already-made disbursements at the conclusion of each lawsuit where plaintiff was substituted as counsel. The parties committed to comply with these provisions within 48 hours; the firm reserved its right to claim a share of attorneys’ fees in any case “referred to” in the order to show cause. Finally, the stipulation included a mutual reservation-of-rights clause, which recited that “[t]his Stipulation should not otherwise be construed as a waiver of any rights or remedies that [plaintiff] or [the firm] may seek to obtain against one another.”

In October 2003, plaintiff commenced a plenary action against the firm and its shareholders, Frederick M. Molod, Alice Spitz and Salvatore J. DeSantis (hereafter collectively, the firm). The firm moved to dismiss the complaint or, alternatively, to stay the action and compel plaintiff to arbitrate; and plaintiff cross-moved to stay arbitration. In a decision filed on February 6, 2004, Supreme Court labeled the complaint “a nullity” inasmuch as it bore the same index number as the special proceeding (id. at *2). As a result, “there [was] no need to dismiss since no action [had] been commenced” (id. at *2). Concomitantly, plaintiffs cross motion to stay arbitration was “moot since the firm only sought arbitration in the event [the] court found the complaint to be valid” (id.).

In the same decision, Supreme Court also denied the firm’s motion and plaintiffs cross motion to enforce and/or set aside the stipulation. The court took the position that the special proceeding had been terminated within the meaning of Teitelbaum Holdings v Gold (48 NY2d 51, 53 [1979] [“A settlement agreement entered into by parties to a lawsuit does not terminate the action unless there has been an express stipulation of discontinuance or actual entry of judgment in accordance with the terms of the settlement”]). As a result, Supreme Court advised the parties that if they “wish[ed] to set aside or enforce the stipulation,” they were required to “institute a plenary action under a new index number and may not proceed, as here, by motion in a disposed case” (2004 NY Slip Op 30150[U], at *2). Supreme Court ruled, however, that “[i]n any event, neither of the parties [had] established entitlement to the requested relief’ relating to the stipulation (id.).

On April 1, 2004, plaintiff served a second complaint (with a newly purchased index number), which asserted five causes of action. The first cause of action alleged breach of contract; specifically, that the firm had “wrongfully terminated [plaintiffs] partnership contract on April 10, 2003.” The second cause of action alleged gender discrimination prohibited by the New York City Human Rights Law; specifically, that the firm had discriminated, harassed and retaliated against plaintiff because of her gender and had “subjected [her] to a hostile work environment without any reasonable avenue for complaint,” all of which “had the purpose and effect of unreasonably interfering with [her] ability to obtain and perform work[ ] [and] work assignments, and created an intimidating, hostile and offensive working environment.” The third cause of action claimed that the firm had wrongfully locked plaintiff out of her office on May 22, 2003, withheld client files, worked on files after she had been chosen as client’s counsel, and refused to execute consents to change attorneys until she forced the issue through litigation. The third cause of action also alleged that the firm had in the past and continued to neglect to forward her mail and phone calls, and “subverted]” her clients and prospective clients. The fourth cause of action sought “wrongfully withheld salary, vacation pay, expense money and bonus money.” The fifth cause of action for defamation alleged that the firm “knowingly made false accusations about [plaintiff] in letters, and affirmations, to judges, court personnel, clients, lawyers, bankers, and other members of the community with the intent to defame, slander and assault [her], injuring her professionally and personally.”

Plaintiff claimed that as a result of the firm’s conduct she had been “severely damaged” and had “suffered substantial economic damage,” including “loss of back pay with interest and other employment related benefits, front pay, diminution in profit from her practice, loss of profit sharing, severe humiliation, embarrassment, mental anguish, sleeplessness, physical and medical harm together with psychic injury, all of which caused [her] to become physically debilitated.” She sought compensatory and punitive damages in the amount of $10 million in the first, second, third and fifth causes of action, and $250,000 in damages in the fourth cause of action.

By notice of motion dated April 8, 2004, the firm sought an order pursuant to the Judiciary Law from the Supreme Court with jurisdiction over a personal injury lawsuit covered by the stipulation to determine the fees and disbursements owing plaintiff and the firm respectively from June 2003 until November 2003, when the case settled. Similarly, by notice of motion dated April 21, 2004, the firm sought an order from the Supreme Court with jurisdiction over another matter covered by the stipulation to confirm a special referee’s report dated April 15, 2004, which allocated attorneys’ fees between the firm and plaintiff, and to direct plaintiff to reimburse the firm its disbursements in the case. By order to show cause dated April 27, 2004, plaintiff asked Supreme Court to prevent the firm from “mov[ing] before the trial judges to whom cases were assigned to have the respective fees of plaintiff and [the firm] determined, and for the payment of disbursements.” She took the position that any requested fee determinations necessarily involved the same matters raised in her recently filed complaint, and that disbursements were covered by the stipulation.

In lieu of an answer, on April 20, 2004, the firm moved to dismiss plaintiff’s complaint “on the grounds, among others, that the action [was] barred by an arbitration provision in the Employment Agreement” or, alternatively, to “stay[ ] the action and compelí ] Plaintiff to proceed with Arbitration.” On May 5, 2004, plaintiff cross-moved to stay arbitration; to deny the firm’s motion; to restrain the firm from seeking its share of fees and disbursements pursuant to the Judiciary Law; and to grant her summary judgment on that portion of her fourth cause of action seeking unpaid wages, vacation pay and expenses. She averred that between September 2003 and April 2004, the firm had served motions “seeking a determination of fees” by the trial courts in three personal injury actions.

Supreme Court dismissed the first, third and fourth causes of action, evidently reasoning that they were sufficiently related to the special proceeding to have been resolved by the stipulation; and dismissed the fifth cause of action for defamation for failure to state a claim with particularity as required by CPLR 3016 (a). The court determined, however, that plaintiffs second cause of action for gender discrimination fell within the ambit of the agreement’s arbitration clause, and that the firm had not abandoned or waived the right to arbitrate. Accordingly, Supreme Court granted the firm’s motion insofar as it sought to stay the second cause of action, and directed the parties to proceed to arbitration; and denied plaintiffs cross motion (2004 NY Slip Op 30149DJ]). Plaintiff appealed everything except the dismissal of her fifth cause of action for defamation.

The Appellate Division, with one Justice dissenting in part, took a different view from Supreme Court, and so reinstated the first, third and fourth causes of action; denied the firm’s motion insofar as it sought to compel arbitration; and granted plaintiffs cross motion to stay arbitration. Addressing whether the firm waived the right to arbitrate, the court observed that

“plaintiff initiated both the special proceeding and the instant plenary action. In response to the special proceeding [the firm] did not move to compel arbitration. Rather, [it] elected to enter into the stipulation, which was ‘so-ordered’ by the justice assigned to the then-pending judicial proceeding, redressing issues between the parties that were embraced by the arbitration clause in the employment agreement. Additionally, [the firm] litigated the issue of the division of attorneys’ fees between the firm and plaintiff in two other actions . . . despite the fact that the issue of the division of attorneys’ fees between the parties was addressed in . . . the employment agreement, and concomitantly subject to the arbitration clause” (29 AD3d 481, 485 [1st Dept 2006] [citations omitted]).

The Appellate Division decided that by “actively participating] in a special proceeding and two plenary actions that involved matters falling within the ambit of the arbitration clause, thereby manifesting an affirmative acceptance of the judicial forum,” the firm had waived its contractual right to compel arbitration (id.). In light of this disposition, the court did not address plaintiffs argument that her claim of gender discrimination was not arbitrable anyway, irrespective of waiver. The firm sought leave to appeal, which we granted as to so much of the Appellate Division’s order as resolved plaintiffs motion to stay and the firm’s motion to compel arbitration.

We have repeatedly recognized New York’s “long and strong public policy favoring arbitration” (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49 [1997]). Indeed, “this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties. Therefore, New York courts interfere as little as possible with the freedom of consenting parties to submit disputes to arbitration” (id. at 49-50 [citations and internal quotation marks omitted]). Nonetheless, “[l]ike contract rights generally, a right to arbitration may be modified, waived or abandoned” (Sherrill v Grayco Bldrs., 64 NY2d 261, 272 [1985]). Accordingly, a litigant may not compel arbitration when its use of the courts is “clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration” (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 372 [2005] [citations and internal quotation marks omitted] [assuming arbitration clause in contract applied to dispute, party seeking its benefit did not assert arbitration as defense in answer or move to compel, electing instead to participate in litigation for 16 months through discovery and filing of note of issue]). As we have further explained,

“[t]he crucial question ... is what degree of participation by the defendant in the action will create a waiver of a right to stay the action. In the absence of unreasonable delay, so long as the defendant’s actions are consistent with an assertion of the right to arbitrate, there is no waiver. However, where the defendant’s participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory” (De Sapio v Kohlmeyer, 35 NY2d 402, 405 [1974] [emphasis added]; see also Singer v Jefferies & Co., 78 NY2d 76, 85 [1991] [under the Federal Arbitration Act, moving to dismiss before moving to compel arbitration “should not be considered a waiver unless the opposing party demonstrates prejudice”]).

Further, “[n]ot every foray into the courthouse effects a waiver of the right to arbitrate. . . . [W]here urgent need to preserve the status quo requires some immediate action which cannot await the appointment of arbitrators, waiver will not occur” (Sherrill, 64 NY2d at 273, citing Preiss/Breismeister Architects v Westin Hotel Co.-Plaza Hotel Div., 56 NY2d 787, 789 [1982]).

Here, the firm opposed plaintiffs June 2003 application and cross-moved for affirmative relief related solely to its fees and disbursements in enumerated personal injury lawsuits that plaintiff sought to retain. In June 2003, the firm entered into a stipulation resolving disputes over substitution of counsel in these lawsuits, the transfer of files, and the timing of its reimbursement for disbursements. The firm specifically reserved its right to attorneys’ fees, and later moved in the trial courts to recover attorneys’ fees and disbursements in lawsuits covered by the stipulation and litigated to conclusion by plaintiff. Additionally, the firm at one point moved to enforce the stipulation. We conclude that these “foray[s] into the courthouse” (Sherrill, 64 NY2d at 273), cumulatively, do not as a matter of law “manifest! ] an affirmative acceptance of the judicial forum” such that the firm’s “actions [were] then inconsistent with [its] later claim that only the arbitral forum [was] satisfactory” (De Sapio, 35 NY2d at 405) for resolving the employment-related claims subsequently advanced by plaintiff.

While the facts in this record do not bespeak exigency of the type addressed in Preiss/Breismeister, the principle for which we cited that case in Sherrill still applies: There is no waiver of arbitration where urgent need justifies resort to the courts. The stipulation minimized any interruption of plaintiffs representation of her clients. As a practical matter, if the firm had insisted upon arbitration in response to plaintiff’s application to Supreme Court in June 2003 to secure files and consents to change attorneys, postpone payment of disbursements and the like, neither plaintiffs nor her clients’ interests would have been well served by the inevitable attendant delay. Further, at that juncture the firm might have reasonably expected the stipulation to short-circuit potential future litigation except with respect to attorneys’ fees and disbursements in the transferred cases, and thus to obviate the need for arbitration.

Notably, the motions in the trial courts seeking attorneys’ fees and disbursements were contemplated by the stipulation, and the firm’s only other affirmative motion subsequent to the stipulation sought to enforce it. Thus, all of the firm’s ventures in Supreme Court addressed or grew out of plaintiffs June 2003 application for emergency relief to allow her to continue to represent clients in pending personal injury lawsuits. Some of these lawsuits were obviously being actively litigated at the time, or at least were nearing their eventual conclusion in late 2003 and early 2004.

Further, the parties included a mutual reservation-of-rights provision in the stipulation. This preserved the firm’s right under the agreement to demand arbitration in the event plaintiff later elected to pursue employment-related grievances not covered by the stipulation. When plaintiff eventually put these claims forward in plenary actions brought in October 2003 (later declared a “nullity”) and April 2004, the firm moved for orders to stay the actions and compel plaintiff to arbitrate. The firm did not file an answer; it engaged in no discovery.

As a final matter, while the firm has not waived arbitration of the second cause of action, the parties dispute whether plaintiffs claim for gender discrimination is arbitrable. As noted previously, the Appellate Division did not reach this issue.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to that court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Order, insofar as appealed from, reversed, etc.

      . Documents in the record discuss and describe this litigation, but none of the actual pleadings or papers are included except the order to show cause and the stipulation of settlement, discussed later. In a decision filed on February 6, 2004, Supreme Court commented that plaintiff “erroneously referred to” her petition as an affirmation (2004 NY Slip Op 30150[U], *1). Accordingly, plaintiff appears to have commenced this action with an order to show cause supported by her affirmation, which Supreme Court ultimately treated as the petition in a special proceeding. The record does not disclose the basis for the trial court’s evident conclusion that a special proceeding (as opposed to a plenary action) was authorized under the circumstances (see Siegel, NY Prac § 547, at 943-944 [4th ed]).

      . The record does not include a copy of this complaint, which Supreme Court in her decision described as having asserted causes of action for “breach of contract, violation of the New York City Human Rights Law and interference and harassment with [plaintiffs] law practice” (id. at *1).

      . The record does not include a copy of these documents. Based on Supreme Court’s decision, the firm complained about how plaintiff was handling the joint escrow account, and requested that she be required to reimburse it immediately for disbursements in the cases covered by the stipulation. The firm also moved for sanctions. For her part, plaintiff accused the firm of withholding disbursement documentation from transferred case files. She sought an order vacating the provision in the stipulation for a joint escrow account.

      . The portion of the order reinstating causes of action is not at issue on this appeal because it is nonfinal (see 7 NY3d 856 [2006]).