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Appellate Division

Appellate Division

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Published by: MikeGoodwinTU on May 05, 2011
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State of New York Supreme Court, Appellate Division Third Judicial Department
Decided and Entered: May 5, 2011509949________________________________In the Matter of JOHN DOEet al.,Respondents,vMEMORANDUM AND ORDERCITY OF SCHENECTADY et al., Appellants.________________________________Calendar Date: January 7, 2011Before: Peters, J.P., Spain, Rose, Kavanagh and Egan Jr., JJ.__________Thorn, Gershon, Tymann & Bonanni, Albany (Alfred L.Goldberger, Acting Corporation Counsel, Schenectady, Gilah R.Moses of counsel), for appellants.Gleason, Dunn, Walsh & O'Shea, Albany (Michael P. Ravalliof counsel), for John Doe and another, respondents.__________Egan Jr., J. Appeal from an order and judgment of the Supreme Court(Kramer, J.), entered September 14, 2009 in Schenectady County,which, among other things, granted petitioners' application, in acombined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment, to, among other things, permanently enjoinrespondents from conducting public disciplinary hearings.In June 2007, respondent Wayne E. Bennett, the PublicSafety Commissioner for respondent City of Schenectady, advisedthe City Council of his intention to modify the City's policedisciplinary process without regard to the collective bargainingagreement between the City and petitioner Schenectady Police
-2-509949Benevolent Association (hereinafter SPBA). In response, SPBA filed an improper practice charge against the City with thePublic Employment Relations Board (hereinafter PERB). The Cityfiled its own improper practice charge against SPBA with PERB,asserting, as is relevant here, that SPBA had impermissiblysought to negotiate disciplinary proceedings, which the Citycontended was a prohibited subject of collective bargaining.Then, in April 2008, Bennett issued a general order setting forththe new disciplinary proceedings policy providing, among otherthings, that such proceedings would in the future be governed bySecond Class Cities Law § 137, under which Bennett would be thesole trier of fact and the formerly-confidential disciplinaryhearings would be open to the public. Several months later, theSPBA filed an amended improper practice charge alleging that theparties' collective bargaining agreement governed disciplinaryprocedures and could not be unilaterally modified byrespondents.
 While the City's and SPBA's charges were pending beforePERB, petitioners James Roe and John Doe – police officersemployed by the City's police department – were each served witha notice of discipline and advised that, pursuant to Second ClassCities Law § 137, the City would be conducting public hearingswith respect to those disciplinary charges. Thereafter, Roe, Doeand the SPBA – on behalf of all its similarly-situated members –commenced the instant combined declaratory judgment action andproceeding pursuant to CPLR article 78 seeking, among otherthings, an order permanently enjoining respondents fromconducting public hearings in connection with police disciplinaryproceedings. The petition/complaint alleged two causes of action– first, that pursuant to Civil Rights Law § 50-a and PublicOfficers Law article 6-A, petitioners were entitled todeclaratory relief in that police disciplinary hearings must beconfidential and, second, that respondents' "unilateral use ofpublic hearings . . . in connection with [police] disciplinaryproceedings [was] in excess of [respondents'] jurisdiction,While this agreement had expired, by operation of law,
it remained in effect until such time as a new agreement wasentered into (see Civil Service Law § 209-a [1] [e]).
-3-509949illegal and contrary to law, in violation of lawful procedure andthe [D]ue [P]rocess [C]lauses of the State and FederalConstitutions and [was] arbitrary, capricious and an abuse ofdiscretion." After petitioners sought, and were granted, atemporary restraining order, respondents cross-moved fordismissal of the petition/complaint, arguing that Supreme Courtlacked subject matter jurisdiction, that SPBA lacked standing andthat the petition/complaint failed to state a cause of action ora legally cognizable claim. Supreme Court denied respondents'cross motion and, finding that Civil Rights Law § 50-a supersededSecond Class Cities Law § 137 and that the legislative intent ofsection 50-a would be thwarted by public disciplinary hearings,granted the petition/complaint and permanently enjoinedrespondents from conducting public police disciplinary hearings.Respondents now appeal. We first address respondents' contention that Supreme Courterred in failing to grant its cross motion to dismiss thepetition/complaint for failure to state a cause of action (seeCPLR 3211 [a] [7]; 7804 [f]). On such a motion, "the
allegations in the complaint are accepted as true and accordedthe benefit of every possible favorable inference to determine ifthe facts, as alleged, fit within any cognizable legal theory"(Keehle v Diocese of Syracuse, 80 AD3d 974, 974 [2011] [internalquotation marks and citation omitted]; see Matter of NiagaraMohawk Power Corp. v State of New York, 300 AD2d 949, 952[2002]). "[T]he dispositive inquiry is whether [petitioner] hasa cause of action and not whether one has been stated" (IMSEngrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356[2008], lv denied 11 NY3d 706 [2008]). As an initial matter, we note that individual policeofficers possess no private right of action for claimedviolations of Civil Rights Law § 50-a (see Matter of 35 N.Y. CityPolice Officers v City of New York, 34 AD3d 392, 394 [2006];Reale v Kiepper, 204 AD2d 72, 72-73 [1994], lv denied 84 NY2d 813[1995]; Poughkeepsie Police Benevolent Assn. v City ofRespondents, in their reply brief, have conceded that
Supreme Court has subject matter jurisdiction.

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