Provided by CourtAlert www. Courtalert. com SUMMARY STATEMENT ON APPLICATION FOR EXPEDITED SERVICE AND/OR INTERIM RELIEF (SUBMITTED BY MOVING PARTY) Date [72172017 Tile ames R. Davis Ill v. City of New York —badex/tuater [10072272014 of Mater Bp plication by! rer Supreme County von cori] of Surrogates rom decree Family Court entered on (2084/20), 20 [7 Name of Nodee of Sudge [Emiy Jane Goodnan ted on = , 20 Ifrom administrative determination, state agency Nature of action ‘or proceediny Provisions [Acicle 78 procweding io estan the City trom laying off © Dapuly Shenifs and demolng 3 supeniing shenia] order of judgment appealed from [TRO temporarily restraining the the City from implomenting the] decree layoffs and demotions pending hearing of the motion for preliminary injunctive relief lon February 10, 2011 llant This ppUcation by respondent _is fr|{1) 20 Order vacating the TRO pursuant lo CPLR 5704] jand transferring this proceeding to another part; (2) solely, in the alternative, the If applying for a stay, state reason why requested Issuance of a bond and the transfer of this proceding to another part and (3) Falling [such relief, transfer of the proceeding to another part. Has any undertaking been posed tyes" sate amount and wpe Has application been mad; tyes, state court below for this relief| Disposition Has there been any prior application Ir tyes", state —— herein in this court no Jand nature| Has advers sary be of this application|yesProvided by Courter nao, www. Courtélert.com Attorney for Opposition Name [New York City Law Department ‘Address[100 Church Street New York, New York 10007 Tel. No.|212 788-1034 ApperrngtyFayNg | Ronald Kiiegerman Ktiegerman & Joseph iTwo Rector Street 20th floor INew York, New York 10006 (212) 964-2500 (Do vot write below this line) DISPOSITION ° Justice Date Motion Date Opposition Reply EXPEDITE _ PHONE ATTORNEYS DECISION BY. ALL PAPERS TO BE SERVED PERSONALLY, court Attorney “Revised 02/01"SUPREME COURT OF THE STATE OF NEW YORK LATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of JAMES R, DAVIS Ili, 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 ON Esquilin, Abdel Abdallah, Ivan Santos, Courtney Skinner, WILLIAM 2) PRAENKEL Maria Devlin, Herman Williams, JR., Deidre Robinson, M S.J. FRAENKEL Steven Bron IN SUPPORT OF “ RESPONDENTS’ MOTION ir TO VACATE THE P s etitioners, TEMPORARY For a Judgment pursuant to Article 78 of the Civil Practice RESTRAINING ORDER Law and Rules, Index No.: 100722/2011 -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. WILLIAM S. J. FRAENKEL, an attomey duly admitted to practice before the Courts of the State of New York, affirms pursuant to Rule 2106 of the Civil Practice Law and Rules, and under penalty of perjury that the following is true and correct 1. 1am an Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation Counsel of the City of New York, attomey for Respondents in the above- captioned proceeding. This proceeding is pursuant to Article 78 of the CPLR and is brought to restrain the City of New York from laying off nine Deputy Sheriff and from demoting three Supervising Deputy Sheriffs. These lay-offs and demotions are necessitated by the difficulteconomic climate and are needed to effect cost savings at the Sheriff's office which is under the jurisdiction of the New York City Department of Finance, 2. ‘The City seeks an immediate vacatur of a temporary restraining order entered — without the requirement of the posting of a bond — by Justice E ily Jane Goodman. That order restrains the City from laying off nine Deputy Sheriffs and demoting three Supervising Deputy Sheriffs. For every day the order remains in effect, the cost to the City is $4,045.00 per day. Although the CPLR requires that when a temporary restraining order is entered the heating for the preliminary injunction be scheduled for the earliest possible date, Justice Goodman set the bearing down for February 10. There was absolutely no basis for the entry of a temporary restraining order because the dispute is nonjusticiable, and because Petitioners failed to demonstrate that Respondents actions are irrational, THE BAC GROUND FACTS. 3. During the afternoon of January 19, 2011, the Office of the Corporation Counsel received, via e-mail, trom Ronald F. Kliegerman, of Kliegerman & Joseph, LLP. copies of a petitioners’ Verified Petition, a Memorandum of Law, a Proposed Order to Show Cause and ‘Temporary Restraining Order, and an Affirmation pursuant 10 Rule 202.7(F) for the Supreme and County Courts. We were informed that petitioner was attempting to file those papers and appear before a Justice of the Supreme Court to have the Order to Show Cause and Temporary Restraining Order issued. Later in the day Mr. Kliegerman informed me that we would not know to whom the matter was assigned until the next day. He said he would call me once a Justive ‘was assigned so we could appear together. 4 On January 20, 2011, at approximately ten minutes before noon, Mr Khiegerman called to say that the matter was assigned to Justice Goudman and she was presentlyPrepared to hear the parties. I arrived at Justice Goodman's Part at approximately ten past noon After a short wait, Justice Goodman invited counsels into het robing room, THE ORAL ARGUMENT. 5, No court reporter was present in the robing room. Justice Goodman accepted an affirmation I had prepared. The affirmation sets forth the legal and factual basis for Respondents” opposition to the request for a Temporary Restring Order, ‘The affirmation also supported Respondents’ Cross-motion to Dismiss. In that affirmation Respondents explain that because the underlying dispute is nonjusticiable, and because Petitioners failed to demonstrate that Respondents actions are irrational, the Petition must be dismissed. Respondents further explained that Petitioners are not entitled to injunetive relief under CPLR Article 63. Petitioners failed to show a likelihood of success on the merits; failed to demonstrate that they will suffer irreparable injury if the preliminary injunction is not granted; and failed to prove that the balance 48 A.D.2d 595, of the equities tips in their favor, Indeed, under De Lury v, City of New ). if Petitioners ultimately prevail they can be fully compensated by the 603 (Ist Dept. 1975 Payment of back salaries and a restoration of their old positions as of the date of the layoffs and demotions. The affirmation also prayed that if an injunction is granted Petitioners should be required to provide an undertaking equal in an amount to the daily expense the City will incur by not being allowed to proceed with the intended lay-offs and demotions, That amount is $4,045.00 per day. 6. Justice Goodman allowed the parties to state their positions. In presenting the City’s position I emphasized that the Courts of this state have frequently found matters tavolving the allocation of scarce public resources, even when public safety. positions are involved, to be nonjusticiable, At the conclusion of the argument, I also directed JusticeGoodman to the City’s request that if a temporary restraining order was to issue, it should be accompanied by the posting of a bond and mentioned that Exhibit 3 to my affirmation set forth that the daily loss to the City would be $4,045.00, While I was explaining that to effect a cost savings the City was required to proceed with the la ying off of nine Deputy Sheriffs and demoting three Supervising Deputy Sheriffs, Justice Goodman interjected: “So we can afford two Chancellors." 7. During a recitation by Petitioners’ counsel of the functions performed by Deputy Sherifl tustice Goodman interrupted Petitioners* counsel and suggested that the Police Department would need to allocate resources to perform the functions now being performed by Deputy Sheriffs. Later, Justice Goodman noted that Deputy Sheritfs often appear in her court Justice Goodman commented how earlier in the week, for a civil commitment, some Deputy Sheri fs were in her court for several hours. Justice Goodman then continued saying that if Deputy Sheriffs had not been present New York City Police officers would have needed to be there and it would have consumed most of a shill. At the end of the argument the union lawyer and the justice exchanged pleasantries about their children, Among the details revealed was that Justice Goodman's daughter was herself laid off, Justice Goodman stated that she would review the papers and issue « decision by the end of the day THE RULING ON THE TEMPORARY RESTRAINING ORDER 8. Justice Goodman granted Petitioners’ request and restrained the City from proceeding with the lay-offs and demotions. Justice Goodman set « return date of February 10, 2011 for oral argument on the request lor the Preliminary Injunction. Justice Goodman did not require the Petitioners to provide an undertaking, but instead instructed counsel to arrange a conference eall tor Friday January 21" to discuss the issue of an undertaking9. When counsel for the parties called chambers this moming, at approximately 9:15 AM, no one answered the phone. Counsel for the parties left a message stating that we were calling to arrange a conference call concerning the matter of a bond. pursuant to Justice Goodman's instructions. JUSTICE GOODMAN'S PREVIOUS FAILURES TO REQUIRE THE POSTING OF A BOND OR TO DECIDE CASES PROMPTLY 10. ‘The City has grave concerns that there may be a delay, both in requiring Petitioners to post a bond ancl deciding the preliminary injunction motion, Each day that the City is precluded from proceeding with the lay-offs and demotions, the City suffers expenses of $4045.00, In other matters before Justice Goodman, the City has been restrained while the opposing party has not been required to post a bond and the preliminary injunction motion has gone undecided. For example, in Broadway Triangle Community Coalition v. Bloomberg, Index No. 112799/09, Justice Goodman, on December 2: . 2009, issued a temporary restraining order enjoining the City trom taking any further steps to implement a rezoning in the Williamsburg Seetion of Brooklyn that was adopted by the City Council and also enjoining the transfer of City- owned land, Justice Goodman declined to require the posting of a bond, To date, 13 months later, the case has not yet been resolved, the temporary retraining order remains partially in effect, the rest of the case remains stayed (despite the City’ motion (also undecided) to lift the stay) and the land development under the rezoning has not been able to move forward. ‘The result has been a delay in the development of city land with potentially significant adverse cconomic consequences to the City. Because of the absence of a bond the City has no ability to ultimately recoup the damages it has incurred as a result of the delay from the temporery retraining order.Il, In Mercedes Casedo v. Marvin Markus, Index No. 40226708, on October 6, 2008 all papers were submitted challenging 2008 rent guidelines increases. More than two months later, on December 11, 2008, oral argument was held. Thirteen months later, on January 20, 2010, Justice Goodman finally issued a decision setting aside 2008 rent increases for thousands of New York City apariments. That decision was subsequently affirmed by the appellate division and an appeal is now pending in the Court of Appeals. As a result of the delay, rent increases throughout the City that went into effect in October 2008, including those that went into effect in October 2009 us ig the same criteria as in 2008, had to be recalculated, 15 months later for thousands of NYC apartments. 2, There is no legal authority which can support Justice Goodman’s decision to grant the temporary restraining order in this matter. The Court is respectfully referred to the Affirmation of William S.J. Fraenkel in Opposition to Petitioners’ Motion for Injunctive Reliet and in Support of Respondents’ Cross-Motion to Dismiss, dated January 20, 2011, for a full discussion of why this case is not nonjusticiable, because it intrudes on the executive branch's authority to decide matters of fiscal policy, and why petitioners have not demonstrated irreparable harm, nor any of the other elements necessary for the extraordinary relief of aninjunction against the government. Nor is there any reason why argument conceming the preliminary injunction needs to be delayed nearly three weeks, until February 10", Justice Goodman’s temporary restraining order should be vacated and underlying matter reassigned to a different part Dated: New York, New York January 21,2011 Mille AAT William S.J. Fraenkel Assistant Corporation Counsel Office of the Corporation Counsel of the City of New York Attorney for Respondents 100 Church Steet, Room 2-105 New York, N.Y, 10007 (212) 788-1247