At an lAS Ex Parte Motion Part of the Supreme Court of the State of New York, held in and for

New York County, at the Courthouse located at 60 Centre Street, in the Borough of Manhattan, City and State of New York, on the __ day of January, 2011

PRE SEN T: HON. _

Justice

SUPREME COURT OF THE STATE OF NEWYORK NEW YORK COUNTY

JAMES R. DAVIS III, as President of the New York City

Deputy Sheriffs' Association, Supervising Deputy Sheriffs: Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos,

Courtney Skinner, Maria Devlin, Herman Williams, JR.,

Deidre Robinson, Steven Brown,

Petitioners, For a Judgment and Order Pursuant to

Article 78 of the Civil Practice Law and Rules,

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINING ORDER

- against-

The City of New York, New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of

the City of New York Department of Finance,

Index No.:

Respondents.

Upon the annexed Petition verified by James R. Davis III, president of the New York City

Deputy Sheriffs' Association, Memorandum of Law, and upon the exhibits annexed to the

aforementioned Petition.

LET THE RESPONDENTS SHOW CAUSE before Honorable at an

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lAS Term, Part of this Court the New York County Supreme Courthouse, located at 60

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Centre Street, New York, New York on the

day of January, 2011 at 9:30 o'clock in the

forenoon, or as soon thereafter as counsel can be heard, why an Order of Judgment should not be made and entered herein:

(1) For a Judgment determining that the Respondents have acted arbitrarily and

capriciously in notifying nine permanent deputy sheriffs that they will be laid off effective January 21,2011;

(2) For a Judgment determining that the Respondents had acted arbitrarily and

capriciously in notifying three supervising deputy sheriffs that they will be demoted effective January 24,2011;

(3)

For such other and further relief as this Court may deem just and proper; and it is

further

ORDERED, that Respondents' Officials, employees, agents and all other persons in active concert or participation with them, be temporarily restrained, pending the hearing of the within motion, from:

(1) Laying off, displacing, discharging, or demoting any New York City Deputy Sheriffs; and (2) Demoting any New York City Supervising Deputy Sheriffs;

(3) Taking any adverse action against any of the Petitioners or union members in retaliation for their having brought this proceeding.

ORDERED, that service of a copy of this Order to Show Cause and the papers on which it is granted, be made upon Respondent, City of New York, by personal service upon their attorney's office at Corporation Counsel, 100 Church Street, New York, New York and Respondent, David M.

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Frankel, as Finance Commissioner of the City of New York Department of Finance by overnight mail upon their office located at One Centre Street, Room 500, New York, New York 10007, on or before the __ day of January 2011, and that such service be deemed sufficient.

ENTER:

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

JAMES R. DAVIS III, as President ofthe New York City

Deputy Sheriffs' Association, Supervising Deputy Sheriffs: Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos,

Courtney Skinner, Maria Devlin, Herman Williams, JR.,

Deidre Robinson, Steven Brown,

Petitioners,

For a Judgment and Order Pursuant to

Article 78 of the Civil Practice Law and Rules,

VERIFIED PETITION

Index No.:

- against-

The City of New York, New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of

the City of New York Department of Finance,

Respondents.

The Petitioner, James R. Davis, III, by his attorneys, Kliegerman & Joseph, LLP, respectfully

alleges as follows:

1. Petitioner, James R. Davis, III is the President of the Deputy Sheriffs Association with

offices located at 2753 Coney Island Avenue, Brooklyn, NY 11235.

2. The Union is certified to represent all uniformed civil service titles within the New

York City Sheriffs office.

3. Kyle Williams, John Schwartz, and Cristina Mellado are New York City Supervising

Deputy Sheriffs.

4. Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos, Courtney

Skinner, Maria Devlin, Herman Williams, JR., Deidre Robinson, Steven Brown, are New York City

Deputy Sheriff.

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THE FACTS

5. On or about January 3, 2011, nine deputy sheriffs Petitioners received letters (see

Exhibit A) informing each that he or she would be laid off effective January 21, 2011.

6. On or about January 3, 2011, three New York City supervising deputy sheriffs

received letters stating that he or she would be demoted effective January 24,2011. (Exhibit B) THE ARGUMENT

7. The decision with regard to which agencies would be effected by layoffs or

demotions, including which employees would be laid off, how many from each division, the relevant impact to public safety that would result by the various layouts, was made without reference to any empirical factors.

8. The decision in the instant case was made in large part by a new commissioner

without any background in law enforcement or public safety.

9. Mayor Bloomberg when first announcing the layoffs indicated that the decrease

would effect 5.4% of the effected Civil employees and 2.7% of effected Uniform employees. (see Exhibit "C")

10. The New York City Sheriffs' Office, which works under the auspices of the New

York City Department of Finance, is scheduled to have nine deputy sheriffs laid off and three supervising deputy sheriffs demoted. There are one hundred and sixteen uniformed members of the Deputy Sheriffs Association. These twelve represent almost 11 % of the work force.

11. Mayor Bloomberg on more than one occasion has recognized the law enforcement

component ofthe Sheriffs' Office as well as its public safety function. (see Exhibit "D")

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12. The Department of Finance's Commissioner has said "The Sheriffs role as Chief

Enforcement Officer for the City is vital in protecting public safety, as well as the public's wallet."

13. Former Sheriff Lindsay Eason referred to the public safety and law enforcement

aspect of the office when he recently retired. (See Exhibit "E")

14. Local Law 56 specifically refers to deputy sheriffs and supervising deputy sheriffs as

having certain job characteristics similar to those of employees working in the City's Uniformed Services, such as police, fire, sanitation and correction services. Those uniformed services mentioned have been specifically exempt from layoffs by the City of New York. (See Exhibit "F")

15. Deputy Sheriffs and Supervising Deputy Sheriffs perform many specific public safety

and law enforcement functions. They collect money from numerous locations in the city and transport it to banking facilities. They serve process in various high crimes areas; provide security for various agencies such as Parking Violations Bureau and the Office of Emergency Management; and enforce Court Orders and warrants under extremely dangerous circumstances.

16. There has been no explanation for the inexplicably large number of vital public

servants that are about to be terminated or demoted in the Sheriffs' Office.

17. The City is attempting to trade public safety for dollars, notwithstanding its obligation

to protect and act in the best interests of its citizens.

18. Respondents have stated that the method for determining layoffs is to first look at

employee appointment date with the most recent being the first to go. If there is a tie to then refer to the employees' number on the eligible list. If the tie remains then refer to each employees' social security number.

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19. A system that makes reference to a social security number for determining which

employee is to be laid off, is not based on any reasonable or logical determination, but is simply

arbitrary and capricious.

WHEREFORE, Petitioners demand Judgment against Respondent and request an

order:

1) Declaring that the actions of Respondents in terminating or demoting Petitioner's are

arbitrary and capricious.

2) Preliminarily and permanently restraining and enjoining Respondents from

terminating or demoting Petitioners.

3) Granting in its entirety the relief sought herein and for such other and further relief as

this Court deems just and proper.

Dated: New York, New York, January 19,2011

~

Kliegerman & Joseph, LLP

Attorney for Petitioners

Two Rector Street, zo" Floor New York, New York 10006 (212) 964-2500

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

JAMES R. DAVIS III, as President of the New York City

Deputy Sheriffs' Association, Supervising Deputy Sheriffs: Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos,

Courtney Skinner, Maria Devlin, Herman Williams, JR.,

Deidre Robinson, Steven Brown,

Petitioners, For a Judgment and Order Pursuant to

Article 78 of the Civil Practice Law and Rules,

- against-

The City of New York, New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of

the City of New York Department of Finance,

Respondents.

STATE OF NEW YORK, COUNTY OF NEW YORK )SS:

VERIFICATION

JAMES R. DAVIS III, being duly sworn deposes and says:

I am a Petitioner in the above action and I have read the foregoing Petition and knows the contents thereof; that the same is true to my knowledge except as to matters therein stated to be on information and belief and as to those matters I believe it to be true.

Dated: New York, New York January 19,2011

the New York City Deputy Sheriffs' Association,

Sworn to before me on the 19th day of January, 2011

'J1,~~'

Notary Public ~

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

JAMES R. DAVIS III, as President of the N ew York City

Deputy Sheriffs' Association, Supervising Deputy Sheriffs: Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos,

Courtney Skinner, Maria Devlin, Herman Williams, JR.,

Deidre Robinson, Steven Brown,

Petitioners, For a Judgment and Order Pursuant to

Article 78 of the Civil Practice Law and Rules,

Index No.:

- against-

The City of New York, New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of

the City of New York Department of Finance,

Respondents.

MEMORANDUM OF LAW IN SUPPORT

OF REQUEST FOR TEMPORARY RESTRAINING ORDER

C.P .L.R. § 7803 provides that the only questions that may be raised in a

proceeding under this Article are:

" ... Whether a determination was made in violation oflawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed ... "

C.P.L.R. §7805 provides:

"On the motion of any party or on its own initiative, the court may stay further proceedings or the enforcement of any determination under review ... "

The hasty decision to layoff nine deputy sheriffs and demote three supervising

deputy sheriffs was made without consideration of the impact on the safety of other

members of the Sheriffs' Office, as well as the general public. In short it was a

completely arbitrary and capricious determination.

C.P.L.R. §6301 provides:

"A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff... "

A temporary injunction is appropriate where (1) there is a likelihood of success on

the merits; (2) a threat of irreparable injury and (3) a balance of equities in favor of the

movant. W. T. Grant Co., v. Srogi, 52 N.Y.2d 496 (1981)

Petitioners have met each requirement. Petitioners have made a prima facia

showing of success on the merits. Where human safety is at issue the burden to establish

this prong of the test is less. (see Doe v. Dinkins, 192 A.D.2d 270 (1st Dept., 1993).

Irreparable injury is found where human safety is involved. Being laid off, where

Petitioners have numerous financial and family obligations will only cost tax payers more

in the long run and is clearly irreparable. Compromising public safety is clearly

irreparable.

It is apparent that the equities favor the Petitioners. One can not compare the

financial interest of the Respondents to the severe impact on public safety and the severe

impact on the safety of other members of the Sheriffs' office that will result without a

Temporary Restraining Order.

Petitioners have demonstrated that it is necessary to obtain the Temporary

Restraining Order.

No prior application for a Temporary Restraining Order has been made.

WHEREFORE, your affiant prays for an order granting in its entirety the relief

sought by Petitioners.

Dated: New York, New York January 19,2011

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it~~tE~Q.

KLIEGERMAN & JOSEPH, LLP Petitioners Attorney

Two Rector Street, 20th Floor, New York, New York, 10006 (212) 962-4466

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

JAMES R. DAVIS III, as President of the New York City

Deputy Sheriffs' Association, Supervising Deputy Sheriffs: Kyle Williams, John Schwartz, Cristina Mellado, and Deputy Sheriffs: Sergio Bocanumenth, Raimundo Esquilin, Abdel Abdallah, Ivan Santos,

Courtney Skinner, Maria Devlin, Herman Williams, JR.,

Deidre Robinson, Steven Brown,

Petitioners, For a Judgment and Order Pursuant to

Article 78 of the Civil Practice Law and Rules,

AFFIRMATION PURSUANT TO RULE 202.7(F)

FOR THE SUPREME AND COUNTY COURTS

Index No.:

- against-

The City of New York, New York City Department of Finance, and DAVID M. FRANKEL, as Finance Commissioner of

the City of New York Department of Finance,

Respondents.

STATEOFNEWYORK )

COUNTY OF NEW YORK ):SS

RONALD E. KLIEGERMAN., being attorney at law duly admitted to practice

law in the State of New York hereby affirms under penalties of perjury as follows:

1. I represent the Petitioners in the above matter.

2. I am submitting this affirmation pursuant to §202.7 of the Uniform Rules for the

Supreme and County Courts.

3. On January 19,2011 I spoke with Georgia Pestana, Esq., Division Chiefs for Labor &

Employment, Corporation Counsel, 100 Church Street, New York, New York 10007, and she

requested that I email (gpestana@law.nyc.gov) a true and complete copy of the Order to Show Cause

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with Temporary Restraining Order and the supporting Petition, Memorandum of Law, and exhibits,

the originals of which are being presented to this Court. I have done so this day.

4. I also provided notice that the Order to Show Cause with Temporary Restraining

Order will be presented to a presiding Judge in the Supreme Court County of New York located at 60

Centre Street, New York, New York on Thursday, January 20,2011. A copy of this Notice is

annexed hereto as Exhibit "G."

Dated: New York, New York January 19,2011

~~~~

KLIEGERMAN & JOSEPH, LLP Attorneys for Petitioners

Two Rector Street, 20th Floor New York, New York 10006 (212) 964-2500

To: Michael A. Cardozo, Esq.

Corporation Counsel Attorneys for Respondents 100 Church Street,

New York, New York 10007

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AFFIDAVIT OF SERVICE

STATE OF NEW YORK

)

) .ss:

)

IND.#

COUNTY OF NEW YORK

BEATRIZ ALVAREZ, being duly sworn, deposes and says:

1. I am not a party to the action, am over eighteen (18) years of age.

2. I work at 2 Rector Street, zo" Floor, New York, New York 10006.

3. January 19, 2011 I served the within copy of the ORDER TO SHOW

CAUSE, VERIFIED PETITION, VERIFICATION, EXHIBITS AND AFFIRMATION 7 NOTICE PURSUANT TO RULE 202.7(F) with accompanying exhibits by electronic email with the individuals authorization to the following: gpestana@law.nyc.gov as well by mailing a true copy to Respondents' attorney last known address set forth after each name:

Michael A. Cardozo, Esq. Corporation Counsel

Attorneys for the City of New York 100 Church Street,

New York, New York 10007

BEATRIZALV

Sworn to before me this 19TH day of January, 2011

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Notary Public