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FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF COLUMBIA
In the Matter of a Petition to Stay Arbitration
Between
CITY OF HUDSON,
Petitioner,
-against- Index No. E012020015667
HUDSON POLICE, Local 3979, Council 82,
Respondent.
For Relief Pursuant to Article 75 of the Civil
Practice Law and Rules,
PETITIONER'S REPLY MEMORANDUM OF LAW
IN OPPOSITION TO CROSS-PETITION AND
IN SUPPORT OF PETITION TO STAY ARBITRATION
GOLDBERG SEGALLA LLP
Jonathan M. Bernstein, Esq.
Matthew C. Van Vessem, Esq.
Attorneys for Petitioner
City of Hudson
P.O. Box 880
Buffalo, New York 14203
Telephone: 716-566-5476
jbernstein@goldbergsegalla.com
mvanvessem@goldbereseealla.com
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PRELIMINARY STATEMENT
("City"
Petitioner, the City of Hudson or "Petitioner"), respectfully submits this Reply
Memorandum of Law in support of its Amended Petition for an order staying permanently
arbitration of a grievance dated February 24, 2020, which was filed by the Hudson Police, Local
("Union"
3979 or "Respondent"). This Reply Memorandum of Law is further submitted in
opposition to the Union's July 17, 2020 Cross-Motion to dismiss, or in the alternative, to compel
arbitration pursuant to Civil Practice Law and Rules ("CPLR") Article 75, as well as to the
Union's Verified Answer and Memorandum of Law.
The Petition should be granted, the Cross-Motion denied, and the arbitration permanently
stayed, because the at-issue grievance is precluded by statute, decisional law, and/or public
parties'
policy and does not allege a cognizable violation of the collective bargaining agreemeñt
("CBA").
STATEMENT OF FACTS
The Court is respectfully referred to all papers submitted by Petitioner, including the
Reply Affirmation of Matthew C. Van Vessem, Esq., cchiisel for the City, dated August 10,
2020 ("Reply Aff."), together with its attachments, the Amended Verified Petition, dated May
28, 2020 ("Verified Pet."), and the Attorney Affirmation in Support of the Petition of Matthew
C. Van Vessem, dated May 28, 2020 ("Van Vessem Aff."), together with its attachments, for a
recitation of the facts relevant to this Reply Memorandum of Law.
ARGUMENT
L ARBITRATION OF THE UNDERLYING GRIEVANCE MUST BE STAYED
PURSUANT TO CPLR § 7503
As set forth in the City's papers coliiliiencing this proceeding, the Union's grievance fails
both prongs of the two-part arbitrability analysis under CPLR Article 75. The City amply
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demonstrated that: (1) the underlying grievance may not lawfully be submitted to arbitration, and
(2) the parties never agreed to submit this particular dispute to arbitration. As such, the Union's
February 24, 2020 grievance must be stayed permanently.
A. The Retirement Benefits At-Issue are a Prohibited Subiect of Bargaining
In response to the Amended Petition, the Union asserts a puzzling claim in its Answer
and in its Memorandum of Law that the Public Employment Relations Board ("PERB") has
"concluded"
that retirement benefits are a mandatory subject of bargaining in New York State
and cites Niagara Falls Police Captains and Lieutenants Association, 33 PERB 3058 (2000) as
authority for this claim.
When one reads the aforementioned case, it is evident that that Union's description of the
holding is entirely wrong. Ironically, and contrary to the Union's claim, this case provides
support to the City that retirement benefits such as those at-issue in this case are prohibited
subjects of bargaining which cannot be arbitrated. In Niagara Falls Police Captains and
Lieutenants Association, supra, the admindstrative law judge who heard the case in the first
instance concluded that a proposal from the union pension benefits was a non-
regarding
mandatory or prohibited subject of bargaining. Id.
The union appealed that determination, but the PERB Board affirmed the ALJ's decision,
finding that the "language of § 443(f-1) is clear that a demand in negotiations for the additional
pension benefit provided by subdivision (f) of this section shall not be subject to compulsory
interest arbitration". Id. (Emphasis in original). Thus, PERB found the language in the statute
was unequivocal and the topic was foreclosed from arbitration by law. Id.
Suffice to say, this decision does not support the Union's claim that PERB found
retireiiient benefits to be a mandatory subject of negotiation. See Respondent's Memorandum of
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Law, p. 5. Instead, PERB held that the extension of pension benefits to Tier II police retirees
(which is the very issue in the Union's grievance) is not a proper (much less a mandatory)
subject for bargaining.NiagaraFallsPoliceCaptainsandLieutenantsAssociation,supra.
As correctly noted by PERB, New York law prohibits the negotiation of "any benefits
provided by or to be provided by a public retireracñt system, or payments to a fund or insurer to
beneficiaries"
provide an income for retirees, or payment to retirees or their and further
proscribes "[c]hanges negotiated between any public employer and public employee, . . . with
respect to any benefit provided by or to be provided by a public retirement system". See Civil
Service Law Section 201(4); Retirement and Social Security Law Section 470.
These statutory provisions highlight an important public policy decision by the New York
State Legislature to foreclose bargaining for retirement benefits by public employees. In certain
cases, the expressed public policy of the State will act to void provisions in a CBA, including in
circumstances similar to this matter. See Town of Wallkill v. Civil Service Employees
Association, 19 N.Y.3d 1066 (2012). In Town of Wallkill, supra, the Court of Appeals
permanently stayed arbitration of a grievance because a provision in that contract with the union,
pertaining to arbitration of police discipline, was prohibited, and thus invalid and unenforceable.
Finding the State Legislature granted disciplinary authority over the police department to local
Town officials through Town Law § 155, the Court ruled that a Town's power and authority
parties'
regarding police discipline cannot be limited by or through the CBA.SeeWallkill,supra.
While the Union here claims retirement benefits are negotiable with regard to what
retirement benefits a City must provide to the Union's members, that argument is belied by an
express limitation set forth in Civil Service Law concerning a prohibition over the ñeg0tiation of
retirement benefits between a public employer and public employee organization.SeeNiagara
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Falls Police Captains and Lieutenants Association, supra. A municipality cannot agree to
provide retirement benefits by contract (or agree in a CBA to arbitrate for such benefits), where
and when the law forbids it. Stated differently, certain rights which exist by or through law
cannot be modified by collective bargaining, as those particular subjects are "prohibited". This
case present that very example. Civil Service Law states that any negotiated retirement benefits
"shall be void"; this is an obvious statutory prohibition concerning the instant grievance and
demand to arbitrate. See Civ. Serv. Law Section 201(4) and Retirement and Soc. Sec. Law
Section 302(9)(d).
Here we know that the City never adopted local legislation which is required to provide
the enhanced retirement benefit that the Union seeks in this grievance. See Van Vessem Aff., ¶
13. The Union can-not dispute this fact. The contract provision on which this claim rests is void,
because the law precludes negotiation of such a contract provision. See City of Yonkers v.
Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 20 N.Y.3d 651 (2013).
Accordingly, a stay of arbitration is proper and the cross-motion must be denied.
B. The Collective Barsdaiag Agreement does not Supersede the Laws of the State of
New York
The Union claims that this Court lacks jurisdiction over the subject matter of this
proceeding, requiring its dismissal. This is erroneous. CPLR Article 75 sets forth plain and
clear authority of the Courts to hear and determine an application to stay arbitration. See CPLR
Section 7503.
It is well-settled that the question of substantive arbitrability is "an issue gêñêrally
instance."
for judicial determination in the first See Kent Waterfront Assoc., LLC v. National
Union Fire Ins. Co. of Pittsburgh, 174 A.D.3d 712 (2019), citing Matter of Smith Barney
Shearson v Sacharow, 91 NY2d 39, 45(1997). If a court determines that the parties had not, for
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example, made an agreement to arbitrate, "that concludes the matter and a stay of arbitration will
denied."
be granted or the application to compel arbitration will be See Matter of County of
Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 (1980).
Contrary to the Union's assertion here, under the particular facts and circumstances in
this proceeding, the determination of whether this grievance is substantively arbitrable is for the
courts, not the arbitrator, to decide. An arbitrator is not permitted to address the question
presented here, and the parties cannot agree to arbitrate this matter, as it is barred by law.
The at-issue provision of the CBA was void ab initio with respect to the benefits the
Union seeks to force now on the City through contract arbitration, i.e., the payment of certain
benefits to Tier II pension members. This is a benefit to which the individual named in the
grievance was not eligible when he was appointed. Indeed, it would have been illegal for the
City to provide this now-demanded benefit to the grievant when he was appointed to the City.
See Matter of City of Johnstown, 99 N.Y.2d 273, 283 (2002)(Graffeo dissent).
Time and again, the courts have ernmined demands for arbitration and concluded that the
matter cannot be arbitrated on the basis of the law, or otherwise, notwithstanding a provision to
the contrary in a collective bargaining agreement. See generally Town of Wallkill, supra; County
of Chautauqua v. Civil Service Employees Association, Local 1000, 8 N.Y.3d 513 (2007). Here
there exists clear statutory language, and a strong underlying public policy, which establishes by
law those terms that cannot be bargained and therefore caññót be arbitrated. Where the law
forbids or precludes arbitration based on statutory or public policy grounds, as it does in this
case, the contract provision is a nullity and a stay of arbitration is proper.
The Union's claim here that this Court lacks jurisdiction to decide this matter is without
merit. Since the Union cannot obtain the demanded benefit through negotiation and since the
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contract cannot grant such benefits under the circumstances of this case, the arbitration of the
grievance must be stayed permañeñtly, and the Union's cross-motion must therefore be denied.
C. The Special Prõcceding filed by the City to Stav Arbitration is Timely
Respondent's argument about the timeliness of this Article 75 Proceeding is without
merit. The petition to stay arbitration was timely filed in compliance with various Executive
Orders suspending the applicable Statute of Limitations.
"tolled"
Executive Order 202.8 through April 19, 2020 "any specific time limit for the
commencement. filing. or service of any legal action, notice, motion, or other process or
state[.]"
proceeding, as prescribed by the procedural laws of the That Executive Order states that
in:
"accordance with the directive of the Chief Judge of the State to
limit court operations to essential matters during the pendency of
the COVID-19 health crisis, any specific time limit for the
commeñcement. filine. or service of any legal action, notice,
motion, or other process or oroceeding, as prescribed by the
procedural laws of the state, including but not limited to the
criminal procedure law, the family court act, the civil practice law
and rules, the court of claims act, the surrogate's court procedure
act, and the uniform court acts, or by any other statute, local law,
ordinance, order, rule, or regulation, or part thereof, is hereby
2020."
tolled from the date of this executive order until April 19,
(Emphasis Added).
On April 7, 2020, Executive Order 202.14 extended the terms of Executive Order 202.8,
with some exceptions, through May 7, 2020. On May 7, 2020, Executive Order 202.28 extended
the terms of Executive Order 202.8, with some exceptions, through June 6, 2020.
On June 6, 2020, New York Governor Andrew Cuomo issued Executive Order 202.38,
which, among other things, extends the tolling period contained Executive Order 202.8 until July
6, 2020. On July 6, 2020, the Governor signed Executive Order 202.48 to continue the
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modification and suspension of laws relating to the disaster emergency tolling
the Statute of Limitations until August 5, 2020. That order was once more extended pursuant to
Executive Order 202.55, tolling the Statute of Limitations until September 4, 2020.
Respondent's argument that this proceeding is time barred due to lack of service within
20 days of receipt the Deniañd for Arbitration is simply wrong. A Petition pursuant to Article
75 is a special proceeding, which requires an index liamber must be purchased from the County
Clerk and a request for judicial intervention filed.
Pursuant to Article 4, section 401 of the CPLR, a special proceeding must be
commeilced, meaning it must be filed with the County Clerk and the fee paid. CPLR 306-b
requires that a petition with notice of petition must be served within 15 days after the filing of the
petition. Service of the petition is required only after the proceeding is coninienced. See CPLR
403, 7503(c). CPLR 306-b expressly states that service of a "petition with notice of petition or
order to show cause shall be made ... after the filing of the summons and complaint, summons
..."
with notice, third-party summons and complaint, or petition CPLR 403(c) and 7503(c) both
allow service in the same mariller as a summons, which does not occur until after filing per
CPLR 306-b.
Contrary to the Union's arguñient, service does not commence this proceeding. Rather,
that occurs through filing first with the County Clerk in order to make the application to stay. See
CPLR 306-b, 403(c), 7503(c). Since this is a proceeding/action and the Executive Orders placed
a toll on the time limits for commencing and serving a proceeding/action, this matter was timely
commenced.
Filing could not have occurred any earlier than it did since the Columbia County Clerk
could not accept filings of non-essential matters. This proceeding does not qualify as an essential
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matter at that time. See Reply Aff., Exhibit A. Pursuant to the Chief Judge's directive, only
essential matters could be filed. Id. Technically, this proceeding/action did not need to be
commenced until after the tolling expires on September 4, 2020. However, the City correctly did
not delay this matter and filed immediately when allowed to do so on May 26, 2020. For
Respondent to claim that this proceeding is somehow untimely is disingennoüs. In fact, the City
could not have filed before that date.
On March 22, 2020, pursuant to Administrative Order AO/78/20 of Chief Administrative
Judge Lawrence Marks, the New York Unified Court System suspeñding all filings (both paper
and e-filing) in all but a select
Preview
FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF COLUMBIA In the Matter of a Petition to Stay Arbitration Between CITY OF HUDSON, Petitioner, -against- Index No. E012020015667 HUDSON POLICE, Local 3979, Council 82, Respondent. For Relief Pursuant to Article 75 of the Civil Practice Law and Rules, PETITIONER'S REPLY MEMORANDUM OF LAW IN OPPOSITION TO CROSS-PETITION AND IN SUPPORT OF PETITION TO STAY ARBITRATION GOLDBERG SEGALLA LLP Jonathan M. Bernstein, Esq. Matthew C. Van Vessem, Esq. Attorneys for Petitioner City of Hudson P.O. Box 880 Buffalo, New York 14203 Telephone: 716-566-5476 jbernstein@goldbergsegalla.com mvanvessem@goldbereseealla.com 27215677.v1 FILED 8/11/2020 1 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 PRELIMINARY STATEMENT ("City" Petitioner, the City of Hudson or "Petitioner"), respectfully submits this Reply Memorandum of Law in support of its Amended Petition for an order staying permanently arbitration of a grievance dated February 24, 2020, which was filed by the Hudson Police, Local ("Union" 3979 or "Respondent"). This Reply Memorandum of Law is further submitted in opposition to the Union's July 17, 2020 Cross-Motion to dismiss, or in the alternative, to compel arbitration pursuant to Civil Practice Law and Rules ("CPLR") Article 75, as well as to the Union's Verified Answer and Memorandum of Law. The Petition should be granted, the Cross-Motion denied, and the arbitration permanently stayed, because the at-issue grievance is precluded by statute, decisional law, and/or public parties' policy and does not allege a cognizable violation of the collective bargaining agreemeñt ("CBA"). STATEMENT OF FACTS The Court is respectfully referred to all papers submitted by Petitioner, including the Reply Affirmation of Matthew C. Van Vessem, Esq., cchiisel for the City, dated August 10, 2020 ("Reply Aff."), together with its attachments, the Amended Verified Petition, dated May 28, 2020 ("Verified Pet."), and the Attorney Affirmation in Support of the Petition of Matthew C. Van Vessem, dated May 28, 2020 ("Van Vessem Aff."), together with its attachments, for a recitation of the facts relevant to this Reply Memorandum of Law. ARGUMENT L ARBITRATION OF THE UNDERLYING GRIEVANCE MUST BE STAYED PURSUANT TO CPLR § 7503 As set forth in the City's papers coliiliiencing this proceeding, the Union's grievance fails both prongs of the two-part arbitrability analysis under CPLR Article 75. The City amply 27215677.vt 2 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 demonstrated that: (1) the underlying grievance may not lawfully be submitted to arbitration, and (2) the parties never agreed to submit this particular dispute to arbitration. As such, the Union's February 24, 2020 grievance must be stayed permanently. A. The Retirement Benefits At-Issue are a Prohibited Subiect of Bargaining In response to the Amended Petition, the Union asserts a puzzling claim in its Answer and in its Memorandum of Law that the Public Employment Relations Board ("PERB") has "concluded" that retirement benefits are a mandatory subject of bargaining in New York State and cites Niagara Falls Police Captains and Lieutenants Association, 33 PERB 3058 (2000) as authority for this claim. When one reads the aforementioned case, it is evident that that Union's description of the holding is entirely wrong. Ironically, and contrary to the Union's claim, this case provides support to the City that retirement benefits such as those at-issue in this case are prohibited subjects of bargaining which cannot be arbitrated. In Niagara Falls Police Captains and Lieutenants Association, supra, the admindstrative law judge who heard the case in the first instance concluded that a proposal from the union pension benefits was a non- regarding mandatory or prohibited subject of bargaining. Id. The union appealed that determination, but the PERB Board affirmed the ALJ's decision, finding that the "language of § 443(f-1) is clear that a demand in negotiations for the additional pension benefit provided by subdivision (f) of this section shall not be subject to compulsory interest arbitration". Id. (Emphasis in original). Thus, PERB found the language in the statute was unequivocal and the topic was foreclosed from arbitration by law. Id. Suffice to say, this decision does not support the Union's claim that PERB found retireiiient benefits to be a mandatory subject of negotiation. See Respondent's Memorandum of 27215677.vt 2 3 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 Law, p. 5. Instead, PERB held that the extension of pension benefits to Tier II police retirees (which is the very issue in the Union's grievance) is not a proper (much less a mandatory) subject for bargaining.NiagaraFallsPoliceCaptainsandLieutenantsAssociation,supra. As correctly noted by PERB, New York law prohibits the negotiation of "any benefits provided by or to be provided by a public retireracñt system, or payments to a fund or insurer to beneficiaries" provide an income for retirees, or payment to retirees or their and further proscribes "[c]hanges negotiated between any public employer and public employee, . . . with respect to any benefit provided by or to be provided by a public retirement system". See Civil Service Law Section 201(4); Retirement and Social Security Law Section 470. These statutory provisions highlight an important public policy decision by the New York State Legislature to foreclose bargaining for retirement benefits by public employees. In certain cases, the expressed public policy of the State will act to void provisions in a CBA, including in circumstances similar to this matter. See Town of Wallkill v. Civil Service Employees Association, 19 N.Y.3d 1066 (2012). In Town of Wallkill, supra, the Court of Appeals permanently stayed arbitration of a grievance because a provision in that contract with the union, pertaining to arbitration of police discipline, was prohibited, and thus invalid and unenforceable. Finding the State Legislature granted disciplinary authority over the police department to local Town officials through Town Law § 155, the Court ruled that a Town's power and authority parties' regarding police discipline cannot be limited by or through the CBA.SeeWallkill,supra. While the Union here claims retirement benefits are negotiable with regard to what retirement benefits a City must provide to the Union's members, that argument is belied by an express limitation set forth in Civil Service Law concerning a prohibition over the ñeg0tiation of retirement benefits between a public employer and public employee organization.SeeNiagara 27215677.vt 3 4 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 Falls Police Captains and Lieutenants Association, supra. A municipality cannot agree to provide retirement benefits by contract (or agree in a CBA to arbitrate for such benefits), where and when the law forbids it. Stated differently, certain rights which exist by or through law cannot be modified by collective bargaining, as those particular subjects are "prohibited". This case present that very example. Civil Service Law states that any negotiated retirement benefits "shall be void"; this is an obvious statutory prohibition concerning the instant grievance and demand to arbitrate. See Civ. Serv. Law Section 201(4) and Retirement and Soc. Sec. Law Section 302(9)(d). Here we know that the City never adopted local legislation which is required to provide the enhanced retirement benefit that the Union seeks in this grievance. See Van Vessem Aff., ¶ 13. The Union can-not dispute this fact. The contract provision on which this claim rests is void, because the law precludes negotiation of such a contract provision. See City of Yonkers v. Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 20 N.Y.3d 651 (2013). Accordingly, a stay of arbitration is proper and the cross-motion must be denied. B. The Collective Barsdaiag Agreement does not Supersede the Laws of the State of New York The Union claims that this Court lacks jurisdiction over the subject matter of this proceeding, requiring its dismissal. This is erroneous. CPLR Article 75 sets forth plain and clear authority of the Courts to hear and determine an application to stay arbitration. See CPLR Section 7503. It is well-settled that the question of substantive arbitrability is "an issue gêñêrally instance." for judicial determination in the first See Kent Waterfront Assoc., LLC v. National Union Fire Ins. Co. of Pittsburgh, 174 A.D.3d 712 (2019), citing Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45(1997). If a court determines that the parties had not, for 27215677.vt 4 5 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 example, made an agreement to arbitrate, "that concludes the matter and a stay of arbitration will denied." be granted or the application to compel arbitration will be See Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 (1980). Contrary to the Union's assertion here, under the particular facts and circumstances in this proceeding, the determination of whether this grievance is substantively arbitrable is for the courts, not the arbitrator, to decide. An arbitrator is not permitted to address the question presented here, and the parties cannot agree to arbitrate this matter, as it is barred by law. The at-issue provision of the CBA was void ab initio with respect to the benefits the Union seeks to force now on the City through contract arbitration, i.e., the payment of certain benefits to Tier II pension members. This is a benefit to which the individual named in the grievance was not eligible when he was appointed. Indeed, it would have been illegal for the City to provide this now-demanded benefit to the grievant when he was appointed to the City. See Matter of City of Johnstown, 99 N.Y.2d 273, 283 (2002)(Graffeo dissent). Time and again, the courts have ernmined demands for arbitration and concluded that the matter cannot be arbitrated on the basis of the law, or otherwise, notwithstanding a provision to the contrary in a collective bargaining agreement. See generally Town of Wallkill, supra; County of Chautauqua v. Civil Service Employees Association, Local 1000, 8 N.Y.3d 513 (2007). Here there exists clear statutory language, and a strong underlying public policy, which establishes by law those terms that cannot be bargained and therefore caññót be arbitrated. Where the law forbids or precludes arbitration based on statutory or public policy grounds, as it does in this case, the contract provision is a nullity and a stay of arbitration is proper. The Union's claim here that this Court lacks jurisdiction to decide this matter is without merit. Since the Union cannot obtain the demanded benefit through negotiation and since the 27215677.vt 5 6 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 contract cannot grant such benefits under the circumstances of this case, the arbitration of the grievance must be stayed permañeñtly, and the Union's cross-motion must therefore be denied. C. The Special Prõcceding filed by the City to Stav Arbitration is Timely Respondent's argument about the timeliness of this Article 75 Proceeding is without merit. The petition to stay arbitration was timely filed in compliance with various Executive Orders suspending the applicable Statute of Limitations. "tolled" Executive Order 202.8 through April 19, 2020 "any specific time limit for the commencement. filing. or service of any legal action, notice, motion, or other process or state[.]" proceeding, as prescribed by the procedural laws of the That Executive Order states that in: "accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commeñcement. filine. or service of any legal action, notice, motion, or other process or oroceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby 2020." tolled from the date of this executive order until April 19, (Emphasis Added). On April 7, 2020, Executive Order 202.14 extended the terms of Executive Order 202.8, with some exceptions, through May 7, 2020. On May 7, 2020, Executive Order 202.28 extended the terms of Executive Order 202.8, with some exceptions, through June 6, 2020. On June 6, 2020, New York Governor Andrew Cuomo issued Executive Order 202.38, which, among other things, extends the tolling period contained Executive Order 202.8 until July 6, 2020. On July 6, 2020, the Governor signed Executive Order 202.48 to continue the 27215677.vl 7 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 modification and suspension of laws relating to the disaster emergency tolling the Statute of Limitations until August 5, 2020. That order was once more extended pursuant to Executive Order 202.55, tolling the Statute of Limitations until September 4, 2020. Respondent's argument that this proceeding is time barred due to lack of service within 20 days of receipt the Deniañd for Arbitration is simply wrong. A Petition pursuant to Article 75 is a special proceeding, which requires an index liamber must be purchased from the County Clerk and a request for judicial intervention filed. Pursuant to Article 4, section 401 of the CPLR, a special proceeding must be commeilced, meaning it must be filed with the County Clerk and the fee paid. CPLR 306-b requires that a petition with notice of petition must be served within 15 days after the filing of the petition. Service of the petition is required only after the proceeding is coninienced. See CPLR 403, 7503(c). CPLR 306-b expressly states that service of a "petition with notice of petition or order to show cause shall be made ... after the filing of the summons and complaint, summons ..." with notice, third-party summons and complaint, or petition CPLR 403(c) and 7503(c) both allow service in the same mariller as a summons, which does not occur until after filing per CPLR 306-b. Contrary to the Union's arguñient, service does not commence this proceeding. Rather, that occurs through filing first with the County Clerk in order to make the application to stay. See CPLR 306-b, 403(c), 7503(c). Since this is a proceeding/action and the Executive Orders placed a toll on the time limits for commencing and serving a proceeding/action, this matter was timely commenced. Filing could not have occurred any earlier than it did since the Columbia County Clerk could not accept filings of non-essential matters. This proceeding does not qualify as an essential 27215677.vt 7 8 of 12 FILED: COLUMBIA COUNTY CLERK 08/11/2020 03:50 PM INDEX NO. E012020015667 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/11/2020 matter at that time. See Reply Aff., Exhibit A. Pursuant to the Chief Judge's directive, only essential matters could be filed. Id. Technically, this proceeding/action did not need to be commenced until after the tolling expires on September 4, 2020. However, the City correctly did not delay this matter and filed immediately when allowed to do so on May 26, 2020. For Respondent to claim that this proceeding is somehow untimely is disingennoüs. In fact, the City could not have filed before that date. On March 22, 2020, pursuant to Administrative Order AO/78/20 of Chief Administrative Judge Lawrence Marks, the New York Unified Court System suspeñding all filings (both paper and e-filing) in all but a select