Uniformed Firefighters Ass'n v. City of New York

173 A.D.2d 206, 569 N.Y.S.2d 634, 1991 N.Y. App. Div. LEXIS 5523

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1991
• Status: Published

Opinion

Order and Judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered December 26, 1990, which denied plaintiffs motion for a preliminary injunction and which granted defendants’ cross-motion pursuant to CPLR 3211 (a) (2), (5) and (7) to dismiss the complaint, unanimously affirmed, without costs.

The IAS court properly found that it lacked subject matter jurisdiction to enjoin implementation of Department Order No. 168, assigning light duty firefighters to serve as division aides, pending the hearing and determination of the plaintiffs improper practice petition and scope of bargaining petition by the Office of Collective Bargaining.

It is well settled that the pendency of a viable action is an indispensable, prerequisite to the granting of a preliminary or temporary injunction (Matter of Hart Is. Comm. v Koch, 150 AD2d 269, 272, lv denied 75 NY2d 705), and that petitions before the Office of Collective Bargaining, which has exclusive jurisdiction over issues of improper labor practices and determinations of whether a City directive or regulation is a mandatory subject of collective bargaining, do not satisfy the requirement that there be an underlying action in order to support the issuance of a preliminary injunction (Matter of Caruso v Ward, 146 AD2d 486, 487).

We have considered plaintiffs remaining claims, and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Wallach, Ross and Smith, JJ.