New York State Unified Ct. Sys. v. New York State Pub. Empl. Relations Bd.

2024 NY Slip Op 31191(U)

• Court: New York Supreme Court, New York County
• Decided: April 8, 2024
• Status: Unpublished

Opinion

New York State Unified Ct. Sys. v New York State Pub. Empl. Relations Bd. 2024 NY Slip Op 31191(U) April 8, 2024 Supreme Court, New York County Docket Number: Index No. 161972/2023 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 161972/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/08/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 161972/2023 NEW YORK STATE UNIFIED COURT SYSTEM, MOTION DATE N/A Petitioner, MOTION SEQ. NO. 002 -v- NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, SUFFOLK COUNTY COURT EMPLOYEES ASSOCIATION, INC.,NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, ILA, LOCAL 2013, AFL-CIO, NEW YORK STATE COURT OFFICERS ASSOCIATION, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,LOCAL 1000, AFSCME, AFL-CIO, DECISION + ORDER ON COURT OFFICERS BENEVOLENT ASSOCIATION OF NASSAU COUNTY, ASSOCIATION OF SUPREME COURT MOTION REPORTERS, NINTH JUDICIAL DISTRICT COURT EMPLOYEES ASSOCIATION, DISTRICT COUNCIL 37, LOCAL 1070, AFSCME, AFL-CIO, COURT ATTORNEYS ASSOCIATION OF THE CITY OF NEW YORK, NEW YORK STATE COURT CLERKS ASSOCIATION, INC.

Respondents. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 46, 47, 48, 49, 50, 51, 77, 78, 83 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL .

Petitioner’s motion to consolidate this proceeding with two other proceedings is denied.

Background

In this proceeding, petitioner seeks to challenge a determination made by respondent

New York State Public Employment Relations Board (“PERB”) that upheld a decision by an

Administrative Law Judge (“ALJ”) concerning petitioner’s COVID-19 testing and vaccination

policies, but modified the ALJ’s remedy. In this motion, petitioner seeks to consolidate this

161972/2023 NEW YORK STATE UNIFIED COURT SYSTEM vs. NEW YORK STATE PUBLIC Page 1 of 4 EMPLOYMENT RELATIONS BOARD ET AL Motion No. 002

1 of 4 [* 1] INDEX NO. 161972/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/08/2024

proceeding with two other proceedings, both of which were filed before this proceeding. The

first was filed in Kings County and the second was filed in Suffolk County, although they were

only commenced a few hours before this proceeding was filed. Petitioner claims that

consolidation is appropriate here given the common questions of law and fact involving PERB’s

decision.

Discussion

The general rule is that consolidated disputes should be placed in the county where the

first action or proceeding was filed (Richardson v Uess Leasing Corp., 191 AD2d 394, 396, 595

NYS2d 210 [1st Dept 1993]). Petitioner acknowledges this rule but argues that Courts have

consolidated proceedings in instances where many of the parties reside in a certain county.

However, the cases petitioner cites for this assertion were plenary actions in which the courts

considered the convenience of the witnesses and the most practical place to conduct a trial (see

Gomez v Jersey Coast Egg Producers, Inc., 186 AD2d 629 [2d Dept 1992]; Perinton Associates

v Heicklen Farms, Inc., 67 AD2d 832 [4th Dept 1979]).

The three instant disputes here are all special proceedings, which, in this Court’s view,

means that considerations about the convenience of the witnesses are irrelevant as special

proceedings are generally decided based solely on the parties’ papers. And all of the counties in

which these proceedings were commenced are in relatively close proximity (Kings County,

Suffolk County and New York County) and yet the instant motion was made in the jurisdiction

in which the last proceeding was filed. Moreover, each proceeding is e-filed and so there is no

obstacle to the parties’ ability to file documents. The Court finds that petitioner did not

adequately explain why consolidation in New York County, as opposed to the other counties, is

161972/2023 NEW YORK STATE UNIFIED COURT SYSTEM vs. NEW YORK STATE PUBLIC Page 2 of 4 EMPLOYMENT RELATIONS BOARD ET AL Motion No. 002

2 of 4 [* 2] INDEX NO. 161972/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/08/2024

appropriate given the clear preference that matters be consolidated in the place where the first

dispute was filed.

Moreover, the response by respondent PERB indicates that consolidation is not

appropriate. While PERB claims that it does not oppose the instant motion, it demands that this

Court decline to consolidate its three separate motions to dismiss and that it be permitted to file

three separate reply briefs. In fact, PERB argues that “The legal issues in the Motions to Dismiss

are sufficiently distinct to necessitate separate briefing, even if the actions are consolidated for

other purposes” (NYSCEF Doc. No. 77, ¶ 11). If the issues in these three proceedings require

PERB to file three separate briefs, then consolidation is not justified here.

Of course, as CPLR 602 provides, consolidation may be ordered where there is “a

common question of law or fact.” A review of the petitions in the three proceedings suggests, as

PERB argues, that there are separate and distinct issues. In this proceeding, petitioner seeks to

vacate the decision by PERB and the ALJ. In the Suffolk County proceeding, the Suffolk

County Court Employees Association, Inc. seeks to reverse PERB’s decision but affirm the

decision by the ALJ. In the Kings County proceeding, the Association of Supreme Court

Reporters seeks to challenge its alleged exclusion from the ALJ’s decision.

While all of the proceedings concern the same determinations by PERB and the ALJ,

each involves different aspects of these decisions. In other words, the Court finds that

consolidation here will not serve to conserve resources. Rather, merging these three separate

proceedings would likely only serve to create a procedural morass. As PERB observed, it has

already filed three separate motions to dismiss and it wants to maintain those motions instead of

consolidating them. This Court wants to avoid creating confusion among these three proceedings

by consolidating them.

161972/2023 NEW YORK STATE UNIFIED COURT SYSTEM vs. NEW YORK STATE PUBLIC Page 3 of 4 EMPLOYMENT RELATIONS BOARD ET AL Motion No. 002

3 of 4 [* 3] INDEX NO. 161972/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 04/08/2024

Accordingly, it is hereby

ORDERED that the motion to consolidate is denied.

4/8/2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

161972/2023 NEW YORK STATE UNIFIED COURT SYSTEM vs. NEW YORK STATE PUBLIC Page 4 of 4 EMPLOYMENT RELATIONS BOARD ET AL Motion No. 002

4 of 4 [* 4]