Preview
FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023
NEW YORK STATE SUPREME COURT
COUNTY OF WESTCHESTER
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In the Matter of the Petition to Preserve the
Status Quo pending arbitration Under Article 75
of the New York Civil Practice Law and Rules by: Index No.
WESTCHESTER COUNTY CORRECTION
OFFICERS BENEVOLENT ASSOCIATION, INC.
Petitioner,
-against-
COUNTY OF WESTCHESTER,
Respondent.
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PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF THE VERIFIED
PETITION AND ORDER TO SHOW CAUSE
INTRODUCTION
This Memorandum of Law is submitted by Petitioner Westchester County Correction
Officers Benevolent Association (“COBA”) in support of its request for an order under CPLR
Section 7502(c) preserving the status quo pending arbitration whereby Respondent’s employees
represented by COBA may continue their entitlement to make vacation selections, known as
“vacation picks” even where they have exhausted vacation and holiday leave credits for the a time
period that includes the final week of the calendar year and whereby such members may continue
to be entitled to use accrued leave of any type to provide payment for any days during the final
week of the calendar year so that any time off during such week may be with pay. COBA also
seeks an order, consistent with the status quo requiring Respondent’s to permit Correction Officer
Claudio Deltreste to select his desired vacation dates and requiring Respondents to honor his
selection.
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STATEMENT OF FACTS
For a complete and accurate statement of facts applicable to this application, the court is
respectfully referred to the accompanying Petition and exhibits.
ARGUMENT
A. The Standard to Obtain a Temporary Restraining Order in Aid of Arbitration.
NY CPLR § 7502(c) states in relevant part, that this Court can:
entertain an application . . . for a preliminary injunction in
connection with an arbitration that is pending or that is to be
commenced inside or outside this state, . . . but only upon the ground
that the award to which the applicant may be entitled may be
rendered ineffectual without such provisional relief. The provisions
of articles 62 and 63 of this chapter shall apply to the application,
including those relating to undertakings and to the time for
commencement of an action (arbitration shall be deemed an action
for this purpose), except that the sole ground for the granting of the
remedy shall be as stated above. If an arbitration is not commenced
within thirty days of the granting of the provisional relief, the order
granting such relief shall expire and be null and void and costs,
including reasonable attorney's fees, awarded to the respondent. The
court may reduce or expand this period of time for good cause
shown. The form of the application shall be as provided in
subdivision (a) of this section.
CPLR 7502(c)(Emphasis added)
Traditionally, to receive injunctive relief, a moving party must demonstrate (1) a likelihood
of success on the merits, (2) danger of irreparable injury in the absence of injunctive relief, and (3)
a balancing of the equities in the plaintiffs’ favor. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862
(1990). This not the case when the injunctive relief is requested under NY CPLR § 7502(c). Rather,
under that provision the moving party must show that an arbitration award “may be rendered
ineffectual” without it. In National Telecommunications Ass’n v. National Communications Ass’n,
189 A.D.2d 573 (1st Dep’t 1993) the court explained:
In arguing that petitioner has failed to demonstrate irreparable harm
and a probability of success on the merits, respondent would have
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this court adopt an inappropriate standard for deciding whether
relief should be granted under CPLR 7502(c), under which the
ground for entertaining an application for a provisional remedy in
aid of arbitration is whether the award ‘may be rendered ineffectual’
without it.
(citations omitted); See also Int’l Union of Operating Eng’rs, Local No. 463 v. City of Niagara
Falls, 191 Misc. 2d 375 (N.Y. Sup. Ct. 2002) (same); In re Guarini, 233 A.D.2d 196 (1st Dept
1996) (trial court "properly refused to consider the merits" of arbitrable claim that was basis for
petitioner's 7502(c) motion); H.I.G. Capital Mgmt., Inc. v Ligator, 233 A.D.2d 270 (1st Dept 1996)
(the "rendered ineffectual" standard is "sole applicable standard" in deciding 7502(c) motion); Eric
J. Wallach, Litigating "Raiding" Cases, 1166 PLI/Corp. 285, 299 (2000) ("In New York State …
the standard for granting temporary or preliminary injunctive relief in aid of arbitration is a
significantly less onerous standard than the normal elements."). Here, COBA has met whatever
standard is necessary to obtain the injunctive relief requested herein.
New York courts have issued the same exact relief COBA seeks here – a temporary
restraining order – in virtually identical cases where the underlying arbitration challenged time off
modifications. In Matter of Uniformed Fire Alarm Dispatcher Benevolent Association of New
York v. City of New York, Index No. 656928/17 (NY County Sup. Ct., Nov. 15,
2017)(“UFADBA”)(See Wien Affirmation at Exhibit A) the City of New York, reduced the number
of compensatory time off slots available to New York City Fire Alarm Dispatchers. The Fire Alarm
Dispatchers’ unionfiled a grievance and a subsequent motion for injunctive relief pursuant to
Section 7502(c). The Court issued a temporary restraining order enjoining the City from reducing
the time off slots pending the adjudication of the expedited arbitration. Here, as in UFADBA, the
municipal employer is restricting the ability to take time off in a manner that deviates from the
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parties’ past practice, the union has grieved and arbitration is pending similar circumstances
warranting a similar result.
Likewise, in Matter of Nassau County Sheriff’s COBA v. Nassau County, Index No.
000220/2017 (Nassau County Sup. Ct., Jan. 13, 2017); See Wien Affirmation at Exhibit B, Nassau
County reduced the number of vacation slots available to its correction officers. The correction
officers’ union filed a grievance and a motion for relief pursuant to Section 7502(c). There, the
Court issued a temporary restraining order enjoining the County from reducing the time off slots
pending the adjudication of the arbitration. Id. This is exactly what has happened here. In both
instances the employer rendered vacation opportunities unavailable for union members and absent
injunctive relief there would have been no remedy for the employees. Here, if injunctive relief is
not granted, and Deltreste is unable to select a vacation, the time period of the desired vacation
will pass and it will be impossible for Deltreste to turn back the calendar.1
In a third case, Ulster County Sheriff’s Employees Association v. Ulster County, et al.,
Index No. EF2022-572 (Ulster County Sup. Ct., March 22, 2022); See Wien Affirmation at Exhibit
B, the municipal employer denied a leave with pay request to attend union meetings. Again, the
union filed both a grievance and applied for an injunction pending arbitration. Again, the Judge
issued a temporary restraining order pending arbitration. Id. As the arbitral remedy would be after
the contemplated union meeting, the court recognized that the calendar cannot be turned back and
the arbitrator’s remedy would be ineffectual, an identical circumstance as is present here.
In sum, in three neighboring counties, three courts issued the relief sought here concerning
a change to time off practices for uniformed personnel. COBA requests no different result here.
Without decision, the Appellate Division, Second Department declined Nassau County’s request
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for an emergency stay of the lower court’s injunction.
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i. COBA Need Not Demonstrate a Likelihood of Success on the Merits of the
Deltreste Grievance to be granted preliminary relief.
The requested relief may be granted so long as the CBA’s definition of a grievance bears a
reasonable relationship to the subject matter in the dispute at issue. In Matter of Sheriff Officers
Assoc., Inc. v. Nassau County, 2012 N.Y. Misc. LEXIS 2913 (N.Y. Sup. Ct. June 8, 2012; Murphy,
J.S.C.)(“Sheriff Officers”), the union filed a grievance challenging the County’s decision to require
a retiree to pay for his medical benefits because he did not work for the County for 25 years. The
County argued in the grievance that the retiree was a uniformed correction officer for 23 years and
purchased two years of prior military service in order to reach his 25 years of creditable service,
and therefore was not contractually entitled to County-paid medical benefits. The union filed a
grievance and, in aid of arbitration, the Nassau County Supreme Court granted a temporary
restraining order and then a preliminary injunction against the County "from stopping County paid
medical health insurance contributions ... on behalf of retired corrections officers, including" the
employee in question. Id. at * 3, 12.2 The court reasoned that (1) the CBA provided for binding
arbitration (id. at *7); (2) the arbitration clause was broad and had a "reasonable relationship"
between the subject matter of the dispute and the general subject matter of the parties' collective
bargaining agreement . . . " (id. at *7); (3) "[t]hat [while] the Petitioners' interpretation may be
rejected, ultimately, is not an issue within the Court's purview. On the contrary, ‘[i]t is for the
arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and
obligations of these parties.’" Id. at *7. The material facts in Sheriff Officers. and those present
here are similar. Both involve a union and county employer, both have a CBA grievance process,
and both have a grievance which was filed. Although Respondent may argue COBA’s
2
It is notable that, in Sheriff Officers, the relief was not limited to the effected individual but was applied to all
employees similarly situated, a remedy similar to that requested herein.
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interpretation of the CBA is not correct, such an argument is not for this Court to decide, but rather
for the arbitrator. Sheriff Officers supra. at *7 (Although “Petitioners' interpretation may be
rejected, ultimately, is not an issue within the Court's purview. On the contrary, ‘[i]t is for the
arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and
obligations of these parties.’”). Likewise, here, the grievance bears a reasonable relationship to the
subject matter in the dispute at issue. Under the CBA a grievance is a “any claimed violation,
misinterpretation or inequitable application of the” CBA. That is exactly what the grievance here
alleged.
ii. Deltreste Will Suffer Irreparable Injury.
Even if one was to ignore the language of CPLR 7502(c) stating that the “sole ground for
the granting of the remedy’’ is whether “the award to which the applicant may be entitled may be
rendered ineffectual without such provisional relief,” it is clear that, even under the traditional
standard, Deltreste will suffer irreparable harm.
An “injury is irreparable when it cannot be adequately compensated in damages or there is
no set pecuniary standard for the measurement of damages.” Board of Higher Ed. City of New
York v. Marcus, 63 Misc.2d 268, 274 (Sup.Ct. Queens Co. 1970). The loss of time off has
repeatedly been found to be the type of injury that justifies a temporary restraining order pending
arbitration. New York State Housing Finance Agency Employees’ Association, et al. v. New York
State Housing Finance Agency, et al., 183 A.D.2d 435 (1st Dept., 1992)(“ HFAEA”) (upholding a
TRO in aid of arbitration for grievance challenging mandate of three days written notice prior to
any absence and mandating employees work on Christmas eve); County of Rockland and County
of Rockland Sheriff, 29 PERB ¶ 7002 (NY Sup. Ct., 1996) (unilateral change in the annual
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assignment bid procedure would subject employees to a loss of planning regarding outside
employment, child care and vacation, all of which were irreparable).
In Cove v. Rosenblatt, 148 A.D.2d 411 (2d Dept., 1989), the employer believed that some
employees exceeded their allotments of leave time and intended to deduct those employees’ leave
bank credits or make payroll deductions for employees who did not have enough time in their
leave bank. 148 A.D.2d at 412. The union representing those employees filed a grievance and a
CPLR § 7502(c) petition. The Appellate Division granted the petition even though, if the union
won the grievance, the employees could have been reimbursed their deducted leave credit or the
payroll deduction. The facts here and in Cove are substantially similar. Both involve a collective
bargaining agreement and a question of whether the employer is in breach of that agreement that
will be heard at an arbitration. Likewise, in both cases, a grievance was filed challenging the
municipality’s decision concerning time off. Deltreste reasonably relied on existing vacation pick
practices in attempting to make his vacation request. If he cannot take that vacation and the
arbitrator’s decision in his favor is issued after the selected dates there will be no opportunity to
secure his contractual rights before arbitration. There is nothing an arbitration award can undue
under these circumstances. The arbitrator cannot give vacation time off for dates that have already
passed. As such the harm is not remedied by financial compensation and, to the extent a showing
of such may be required, is irreparable.
iii. The Balance of the Equities Tips in the Petitioner’s Favor.
Maintaining the status quo will harm the Respondent no more than they have been
“harmed” under the prior vacation pick practices. Even if the practice is in error, Respondent is
culpable for the error and is the author of its own harm. If the status quo alteration is permitted to
stand, however, harm of the COBA members will certainly result, as explained above. See
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CanWest Global Communications Corp. v. Mirkaei Tikshoret Ltd., 9 Misc.3d 845 (NY Cty Sup.
Ct., 2005) (holding that the balance of equities tilted in favor of the plaintiff alleging breach of that
agreement in its application for temporary restraining order since that party merely sought to
maintain status quo). Granting injunctive relief means the jointly selected arbitrator will decide
the grievance within the 30 day time-frame required by § 7502(c) which acts to mitigate any harm
to the employer. For all these reasons, the balance of equities weighs in the union’s favor.
B. The Arbitration is Pending.
On October 24, 2023, COBA filed a grievance challenging the County’s conduct with
respect to Deltreste’s vacation pick attempts. The process of arbitration has now taken hold. This
conclusion is made clear by HFAEA, 183 A.D.2d at 435 where the court rejected the employer’s
argument that there “was no arbitrable controversy since grievance procedures had not yet been
exhausted and a demand for arbitration not yet served” finding this argument to be “at odds with
the plain purpose of CPLR 7502(c) to preserve the status quo so as to insure that an arbitration
award will not be rendered ineffectual.”
CONCLUSION
As a result of the foregoing, the requested relief should be granted.
Dated: October 27, 2023
White Plains, NY
Respectfully Submitted,
ISAACS DEVASIA CASTRO & WIEN, LLP
75 South Broadway – 4th Floor
White Plains, NY 10601
(917) 763-4457
By: Howard Wien
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FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 NEW YORK STATE SUPREME COURT COUNTY OF WESTCHESTER --------------------------------------------------------X In the Matter of the Petition to Preserve the Status Quo pending arbitration Under Article 75 of the New York Civil Practice Law and Rules by: Index No. WESTCHESTER COUNTY CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC. Petitioner, -against- COUNTY OF WESTCHESTER, Respondent. -------------------------------------------------------X PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF THE VERIFIED PETITION AND ORDER TO SHOW CAUSE INTRODUCTION This Memorandum of Law is submitted by Petitioner Westchester County Correction Officers Benevolent Association (“COBA”) in support of its request for an order under CPLR Section 7502(c) preserving the status quo pending arbitration whereby Respondent’s employees represented by COBA may continue their entitlement to make vacation selections, known as “vacation picks” even where they have exhausted vacation and holiday leave credits for the a time period that includes the final week of the calendar year and whereby such members may continue to be entitled to use accrued leave of any type to provide payment for any days during the final week of the calendar year so that any time off during such week may be with pay. COBA also seeks an order, consistent with the status quo requiring Respondent’s to permit Correction Officer Claudio Deltreste to select his desired vacation dates and requiring Respondents to honor his selection. 1 1 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 STATEMENT OF FACTS For a complete and accurate statement of facts applicable to this application, the court is respectfully referred to the accompanying Petition and exhibits. ARGUMENT A. The Standard to Obtain a Temporary Restraining Order in Aid of Arbitration. NY CPLR § 7502(c) states in relevant part, that this Court can: entertain an application . . . for a preliminary injunction in connection with an arbitration that is pending or that is to be commenced inside or outside this state, . . . but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. The provisions of articles 62 and 63 of this chapter shall apply to the application, including those relating to undertakings and to the time for commencement of an action (arbitration shall be deemed an action for this purpose), except that the sole ground for the granting of the remedy shall be as stated above. If an arbitration is not commenced within thirty days of the granting of the provisional relief, the order granting such relief shall expire and be null and void and costs, including reasonable attorney's fees, awarded to the respondent. The court may reduce or expand this period of time for good cause shown. The form of the application shall be as provided in subdivision (a) of this section. CPLR 7502(c)(Emphasis added) Traditionally, to receive injunctive relief, a moving party must demonstrate (1) a likelihood of success on the merits, (2) danger of irreparable injury in the absence of injunctive relief, and (3) a balancing of the equities in the plaintiffs’ favor. Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862 (1990). This not the case when the injunctive relief is requested under NY CPLR § 7502(c). Rather, under that provision the moving party must show that an arbitration award “may be rendered ineffectual” without it. In National Telecommunications Ass’n v. National Communications Ass’n, 189 A.D.2d 573 (1st Dep’t 1993) the court explained: In arguing that petitioner has failed to demonstrate irreparable harm and a probability of success on the merits, respondent would have 2 2 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 this court adopt an inappropriate standard for deciding whether relief should be granted under CPLR 7502(c), under which the ground for entertaining an application for a provisional remedy in aid of arbitration is whether the award ‘may be rendered ineffectual’ without it. (citations omitted); See also Int’l Union of Operating Eng’rs, Local No. 463 v. City of Niagara Falls, 191 Misc. 2d 375 (N.Y. Sup. Ct. 2002) (same); In re Guarini, 233 A.D.2d 196 (1st Dept 1996) (trial court "properly refused to consider the merits" of arbitrable claim that was basis for petitioner's 7502(c) motion); H.I.G. Capital Mgmt., Inc. v Ligator, 233 A.D.2d 270 (1st Dept 1996) (the "rendered ineffectual" standard is "sole applicable standard" in deciding 7502(c) motion); Eric J. Wallach, Litigating "Raiding" Cases, 1166 PLI/Corp. 285, 299 (2000) ("In New York State … the standard for granting temporary or preliminary injunctive relief in aid of arbitration is a significantly less onerous standard than the normal elements."). Here, COBA has met whatever standard is necessary to obtain the injunctive relief requested herein. New York courts have issued the same exact relief COBA seeks here – a temporary restraining order – in virtually identical cases where the underlying arbitration challenged time off modifications. In Matter of Uniformed Fire Alarm Dispatcher Benevolent Association of New York v. City of New York, Index No. 656928/17 (NY County Sup. Ct., Nov. 15, 2017)(“UFADBA”)(See Wien Affirmation at Exhibit A) the City of New York, reduced the number of compensatory time off slots available to New York City Fire Alarm Dispatchers. The Fire Alarm Dispatchers’ unionfiled a grievance and a subsequent motion for injunctive relief pursuant to Section 7502(c). The Court issued a temporary restraining order enjoining the City from reducing the time off slots pending the adjudication of the expedited arbitration. Here, as in UFADBA, the municipal employer is restricting the ability to take time off in a manner that deviates from the 3 3 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 parties’ past practice, the union has grieved and arbitration is pending similar circumstances warranting a similar result. Likewise, in Matter of Nassau County Sheriff’s COBA v. Nassau County, Index No. 000220/2017 (Nassau County Sup. Ct., Jan. 13, 2017); See Wien Affirmation at Exhibit B, Nassau County reduced the number of vacation slots available to its correction officers. The correction officers’ union filed a grievance and a motion for relief pursuant to Section 7502(c). There, the Court issued a temporary restraining order enjoining the County from reducing the time off slots pending the adjudication of the arbitration. Id. This is exactly what has happened here. In both instances the employer rendered vacation opportunities unavailable for union members and absent injunctive relief there would have been no remedy for the employees. Here, if injunctive relief is not granted, and Deltreste is unable to select a vacation, the time period of the desired vacation will pass and it will be impossible for Deltreste to turn back the calendar.1 In a third case, Ulster County Sheriff’s Employees Association v. Ulster County, et al., Index No. EF2022-572 (Ulster County Sup. Ct., March 22, 2022); See Wien Affirmation at Exhibit B, the municipal employer denied a leave with pay request to attend union meetings. Again, the union filed both a grievance and applied for an injunction pending arbitration. Again, the Judge issued a temporary restraining order pending arbitration. Id. As the arbitral remedy would be after the contemplated union meeting, the court recognized that the calendar cannot be turned back and the arbitrator’s remedy would be ineffectual, an identical circumstance as is present here. In sum, in three neighboring counties, three courts issued the relief sought here concerning a change to time off practices for uniformed personnel. COBA requests no different result here. Without decision, the Appellate Division, Second Department declined Nassau County’s request 1 for an emergency stay of the lower court’s injunction. 4 4 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 i. COBA Need Not Demonstrate a Likelihood of Success on the Merits of the Deltreste Grievance to be granted preliminary relief. The requested relief may be granted so long as the CBA’s definition of a grievance bears a reasonable relationship to the subject matter in the dispute at issue. In Matter of Sheriff Officers Assoc., Inc. v. Nassau County, 2012 N.Y. Misc. LEXIS 2913 (N.Y. Sup. Ct. June 8, 2012; Murphy, J.S.C.)(“Sheriff Officers”), the union filed a grievance challenging the County’s decision to require a retiree to pay for his medical benefits because he did not work for the County for 25 years. The County argued in the grievance that the retiree was a uniformed correction officer for 23 years and purchased two years of prior military service in order to reach his 25 years of creditable service, and therefore was not contractually entitled to County-paid medical benefits. The union filed a grievance and, in aid of arbitration, the Nassau County Supreme Court granted a temporary restraining order and then a preliminary injunction against the County "from stopping County paid medical health insurance contributions ... on behalf of retired corrections officers, including" the employee in question. Id. at * 3, 12.2 The court reasoned that (1) the CBA provided for binding arbitration (id. at *7); (2) the arbitration clause was broad and had a "reasonable relationship" between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement . . . " (id. at *7); (3) "[t]hat [while] the Petitioners' interpretation may be rejected, ultimately, is not an issue within the Court's purview. On the contrary, ‘[i]t is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of these parties.’" Id. at *7. The material facts in Sheriff Officers. and those present here are similar. Both involve a union and county employer, both have a CBA grievance process, and both have a grievance which was filed. Although Respondent may argue COBA’s 2 It is notable that, in Sheriff Officers, the relief was not limited to the effected individual but was applied to all employees similarly situated, a remedy similar to that requested herein. 5 5 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 interpretation of the CBA is not correct, such an argument is not for this Court to decide, but rather for the arbitrator. Sheriff Officers supra. at *7 (Although “Petitioners' interpretation may be rejected, ultimately, is not an issue within the Court's purview. On the contrary, ‘[i]t is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of these parties.’”). Likewise, here, the grievance bears a reasonable relationship to the subject matter in the dispute at issue. Under the CBA a grievance is a “any claimed violation, misinterpretation or inequitable application of the” CBA. That is exactly what the grievance here alleged. ii. Deltreste Will Suffer Irreparable Injury. Even if one was to ignore the language of CPLR 7502(c) stating that the “sole ground for the granting of the remedy’’ is whether “the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief,” it is clear that, even under the traditional standard, Deltreste will suffer irreparable harm. An “injury is irreparable when it cannot be adequately compensated in damages or there is no set pecuniary standard for the measurement of damages.” Board of Higher Ed. City of New York v. Marcus, 63 Misc.2d 268, 274 (Sup.Ct. Queens Co. 1970). The loss of time off has repeatedly been found to be the type of injury that justifies a temporary restraining order pending arbitration. New York State Housing Finance Agency Employees’ Association, et al. v. New York State Housing Finance Agency, et al., 183 A.D.2d 435 (1st Dept., 1992)(“ HFAEA”) (upholding a TRO in aid of arbitration for grievance challenging mandate of three days written notice prior to any absence and mandating employees work on Christmas eve); County of Rockland and County of Rockland Sheriff, 29 PERB ¶ 7002 (NY Sup. Ct., 1996) (unilateral change in the annual 6 6 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 assignment bid procedure would subject employees to a loss of planning regarding outside employment, child care and vacation, all of which were irreparable). In Cove v. Rosenblatt, 148 A.D.2d 411 (2d Dept., 1989), the employer believed that some employees exceeded their allotments of leave time and intended to deduct those employees’ leave bank credits or make payroll deductions for employees who did not have enough time in their leave bank. 148 A.D.2d at 412. The union representing those employees filed a grievance and a CPLR § 7502(c) petition. The Appellate Division granted the petition even though, if the union won the grievance, the employees could have been reimbursed their deducted leave credit or the payroll deduction. The facts here and in Cove are substantially similar. Both involve a collective bargaining agreement and a question of whether the employer is in breach of that agreement that will be heard at an arbitration. Likewise, in both cases, a grievance was filed challenging the municipality’s decision concerning time off. Deltreste reasonably relied on existing vacation pick practices in attempting to make his vacation request. If he cannot take that vacation and the arbitrator’s decision in his favor is issued after the selected dates there will be no opportunity to secure his contractual rights before arbitration. There is nothing an arbitration award can undue under these circumstances. The arbitrator cannot give vacation time off for dates that have already passed. As such the harm is not remedied by financial compensation and, to the extent a showing of such may be required, is irreparable. iii. The Balance of the Equities Tips in the Petitioner’s Favor. Maintaining the status quo will harm the Respondent no more than they have been “harmed” under the prior vacation pick practices. Even if the practice is in error, Respondent is culpable for the error and is the author of its own harm. If the status quo alteration is permitted to stand, however, harm of the COBA members will certainly result, as explained above. See 7 7 of 8 FILED: WESTCHESTER COUNTY CLERK 10/29/2023 02:11 PM INDEX NO. 69881/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/2023 CanWest Global Communications Corp. v. Mirkaei Tikshoret Ltd., 9 Misc.3d 845 (NY Cty Sup. Ct., 2005) (holding that the balance of equities tilted in favor of the plaintiff alleging breach of that agreement in its application for temporary restraining order since that party merely sought to maintain status quo). Granting injunctive relief means the jointly selected arbitrator will decide the grievance within the 30 day time-frame required by § 7502(c) which acts to mitigate any harm to the employer. For all these reasons, the balance of equities weighs in the union’s favor. B. The Arbitration is Pending. On October 24, 2023, COBA filed a grievance challenging the County’s conduct with respect to Deltreste’s vacation pick attempts. The process of arbitration has now taken hold. This conclusion is made clear by HFAEA, 183 A.D.2d at 435 where the court rejected the employer’s argument that there “was no arbitrable controversy since grievance procedures had not yet been exhausted and a demand for arbitration not yet served” finding this argument to be “at odds with the plain purpose of CPLR 7502(c) to preserve the status quo so as to insure that an arbitration award will not be rendered ineffectual.” CONCLUSION As a result of the foregoing, the requested relief should be granted. Dated: October 27, 2023 White Plains, NY Respectfully Submitted, ISAACS DEVASIA CASTRO & WIEN, LLP 75 South Broadway – 4th Floor White Plains, NY 10601 (917) 763-4457 By: Howard Wien 8 8 of 8