The following papers numbered 1 to 18 were read on this motion by the Respondents for an order pursuant to CPLR 7804(f) dismissing the petition with prejudice on the grounds that: (a) Petitioners have failed to exhaust their contractual remedies; (b) the naming of unknown Petitioners is improper; (c) the Westchester County Correction Officers Benevolent Association [*2](hereinafter "Union") lacks standing; (d) the Petitioners have waived their rights to bring the instant Article 78 proceeding; (e) the petition has been improperly brought as an Article 78 proceeding rather than an Article 75 proceeding; and (f) the petition fails to state a cause of action.

Notice of Motion - Affirmation - Affidavits1-2, 12-13

Memorandum of Law14

Answering Affirmation15

Replying Affirmation16

Exhibits3-11

Filed Papers (Order to Show Cause/Petition)17-18

Upon the foregoing papers, it is ordered that the motion is decided as follows:

In this Article 78 proceeding, Petitioners seek an order: (1) directing Respondents to pay each correction officer all benefits up to the actual date of a determination finding such officer is no longer entitled to such benefits; (2) issuing a preliminary injunction barring the Respondents, during the pendency of this action, from using the "job pending" and/or any similar status from withholding, revoking and/or interfering with benefits due pursuant to GML § 207-c until after an individual determination has been made in each case by a hearing officer or medical consulting service finding an individual is no longer entitled to such benefits; (3) issuing a permanent injunction barring the Respondents from using the "job pending" and/or any similar status from withholding, revoking and/or interfering with benefits due pursuant to GML § 207-c until after an individual determination has been made in each case by a hearing officer or medical consulting service finding an individual is no longer entitled to such benefits; and (4) awarding Petitioners attorney's fees and the costs and disbursements of this action.

In their Article 78 petition, Petitioners seek injunctive relief and damages. Petitioners assert in the petition that Respondents have violated the parties' Collective Bargaining Agreement (hereinafter "CBA") and the law by denying Petitioners, who were injured in the line of duty, their salaries and benefits. Petitioners rely upon GML § 207 which provides, in relevant part, that any Westchester County correction officer:

who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased ...

Petitioners also assert that under the CBA, if an individual is found fit to return to duty after an independent medical examination, the individual may challenge this finding either through arbitration or a designated medical consulting service, and that the determination arising after the challenge is binding. Petitioners contend that until such a determination has been made, it is improper for Respondents under the CBA to revoke or interfere with Petitioners' benefits under [*3]GML § 207-c. All of the individual Petitioners were deemed by the Respondent Department as injured in the line of duty and, thereafter, deemed as fit to return to duty. Each Petitioner challenged the finding that they were fit to return to duty and elected to have the medical dispute submitted to an independent medical consultant for determination. While the determination was pending, Respondent Department deducted accrued vacation and/or sick leave from the individual Petitioner's accrued time. The medical consultant determined that each Petitioner was fit to return to duty for a portion of the period during which the determination was pending and the Respondent Department credited the individual Petitioners with accrued leave only for the period of time which the medical consultant deemed them unfit for duty. Petitioners contend that Respondents violated the CBA by placing correction officers on "job pending" status and withholding their salaries or deducting accrued leave until the determination by the medical consultant was rendered. Petitioners allege that an individual placed on "job pending" status is paid only if they have accrued sick or vacation leave which they may use, and that the creation of the "job pending" status is in violation of the CBA and GML § 207. Petitioners contend that by the foregoing actions, the Respondents failed to perform duties enjoined to them under the law, acted in excess of their jurisdiction, in violation of lawful procedures, and in an arbitrary and capricious manner.

Respondents now move to dismiss the petition on the following grounds: The Court lacks subject matter jurisdiction because Petitioners failed to exhaust their contractual remedies. The Petitioners have waived their rights to bring the instant Article 78 proceeding. The naming of unknown Petitioners is improper. Petitioner Union lacks standing. The petition fails to state a cause of action.^[FN1]

Subject Matter Jurisdiction and Waiver

Respondents first assert that the petition must be dismissed since this Court lacks subject matter jurisdiction. Although Petitioners failed to address Respondents' contention with respect to subject matter jurisdiction, that branch of the motion seeking dismissal based on a lack of subject matter jurisdiction must be denied with respect to Petitioner's claims that Respondents violated the terms of the CBA. Respondents have failed to meet their burden of demonstrating that this Court lacks subject matter jurisdiction as to the contract claims. Respondents, however, have demonstrated that Petitioners waived their right to commence the Article 78 proceeding with respect to Respondents' alleged violations of GML § 207-c and, therefore, the Court lacks subject matter jurisdiction over those claims.

Respondents contend that Petitioners waived their right to commence a legal proceeding by challenging the Respondent Department's finding that they were fit to return to duty under [*4]Article XX of the CBA. Article XX of the CBA, provides, in relevant part, that, upon electing to have the medical dispute resolved at a due process hearing or by a medical consulting service, a correction officer waives his or her right to appeal an adverse determination and "any other right as may be granted by General Municipal Law §207-c." Pursuant to this provision of the CBA, Petitioners have waived their rights under GML § 207-c, but have not waived the rights granted to them under the terms of the CBA. Specifically, the Petitioners' election to have a medical consultant determine their medical disputes regarding their fitness to return to duty did not waive their rights under Article XX, entitled "Line of Duty Determination". Paragraph 12(a) of Article XX provides that "[t]he Department agrees to retain all correction officers subject to such medical disputes as described in paragraph 2(c) on full pay, line of duty status until such date as a decision is rendered by the hearing officer, or medical consultant." Paragraph 2(c) refers to the issue of whether a correction officer who was injured in the line of duty has sufficiently recovered and is able to return to temporary limited duty or full duty.

Respondents also contend that this Court lacks subject matter jurisdiction over the proceeding since Petitioners have not exhausted their contractual remedies through the grievance procedure provided in the CBA. Article XI, Section 5 of the CBA, entitled "Grievance Procedure", provides, in relevant part, that "[e]very Employee shall have the right to present grievances to the County". The section further defines "grievance" as follows:

any claimed violation, misinterpretation or inequitable application of the Agreement, or of applicable existing laws, rules, procedures, regulations, administrative orders, or work rules which relate to, or involve Employee health or safety, physical facilities, materials, or equipment furnished to Employees, or supervision of Employees; provided, however, that such term shall not include any matter involving an Employee's classification or allocation ...

Respondents contend that since grievances were filed on behalf of the individual Petitioners, the arguments raised in the grievances are waived and are issues for an arbitrator. In their grievances, each individual Petitioner asserted that the Respondent Department improperly deducted their accrued leave for the period of time during which the determination of the medical consultant was pending, and, therefore, unilaterally changed the "Line of Duty Determination" clause of Article XX of the CBA. As noted earlier, paragraph 12 (a) of Article XX provides that the Respondent Department agreed to retain all correction officers subject to medical disputes as to their fitness to return to duty on full pay, line of duty status until a decision was rendered by the hearing officer or medical consultant. Petitioners filed their grievances on June 13, 2007. There is no indication in the papers as to the status of the grievances.

The portion of Article XI, Section 5 of the CBA, which was submitted by Respondents in support of the motion, provides a three step procedure for grievances. First, the grievance is submitted to the Commissioner of Respondent Department. Second, if the grievance is not "adjusted" or no response is received within 15 days, then the grievance "may" be submitted to the Director of Labor Relations within 15 days of a response from the Commissioner. If the Director of Labor Relations fails to hold a hearing or give a written response within 15 working [*5]days of receipt of the grievance, the grievance shall be deemed to have received a negative response. Third, in the event the grievance is not "adjusted" by the Director of Labor Relations or no hearing is held, the grievance "may", at the request of the County or the Union, be submitted within 15 working days of an answer or negative response to a mutually agreed upon Arbitrator. The portion of Article XI, Section 5 of the CBA, which was submitted by Respondents in support of the motion, does not address the effect of the failure of the correction officer or Union to submit the grievance to the Director of Labor Relations or the failure of the County or the Union to seek arbitration of the grievance.

Contrary to Respondents' contention, the Court finds that Petitioners were not required to pursue arbitration of their grievances under the CBA, and the failure to pursue arbitration does not deny the Court subject matter jurisdiction over the contract claims in the present Article 78 proceeding. Article XI, Section 5 does not indicate that submitting the grievance to the Director of Labor Relations or to arbitration is mandatory. Rather, Section 5 merely provides that the grievance "may" be submitted to the Director of Labor Relations and to arbitration. Moreover, the portion of Article XI, Section 5 submitted to the Court by Respondents does not support their contention that Petitioners waived their right to commence a legal proceeding. Notably, although Section 5 states that an arbitrator's findings and conclusions shall be binding on all parties, it fails to state that a correction officer who files a grievance waives his or her right to commence a legal proceeding on the same issues raised in the grievance in the event the grievance is never submitted to arbitration.^[FN2] The cases relied upon by Respondents are distinguishable from the present proceeding. In those Article 78 cases, the petitioners challenged respondents' medical evaluation as to their condition to work without first seeking to arbitrate the issue, as required by their collective bargaining agreement (see Cafiero v Board of Educ. of City School Dist. of City of New York, 284 AD2d 330, lv denied 98 NY2d 601; Gamma v Bloom, 274 AD2d 14). Here, however, Petitioners are not challenging the Respondent Department's medical evaluations regarding their fitness to return to duty or the subsequent medical consultant's determination as to the propriety of the medical evaluations, but rather are challenging the deduction of their sick leave while the medical consultant's determination was pending. Accordingly, Respondents have failed to submit any documentary evidence or case law to support their contention that the Petitioners waived their right to commence the present legal proceeding by filing their grievances pursuant to the CBA challenging the deduction of their sick leave and then failing to seek arbitration of their grievances. [*6]

In any event, it is arguable that the grievances were improperly brought under Article XI, Section 5 of the CBA. The grievances essentially argued that Respondent Department improperly reclassified Petitioners' job status from "line of duty" to "job pending" while the medical consultant's determination was pending. Article XI, Section 5 of the CBA provides that the term "grievance" "shall not include any matter involving an Employee's classification ..." Respondents failed to provide the Court with a complete copy of the CBA so it cannot be determined what procedures, if any, were provided by the CBA to challenge determinations regarding a correction officer's classification.

In view of the foregoing, that branch of the motion seeking to dismiss the petition for lack of subject matter jurisdiction and waiver is granted only with respect to Petitioners' claims that Respondents violated GML § 207-c, and those claims are dismissed. That branch of the motion seeking to dismiss the petition for lack of subject matter jurisdiction is denied with respect to Petitioners' claims that Respondents violated certain terms of the CBA.

Naming of Unknown Petitioners

Respondents correctly contend that the petition improperly names John Does "1" through "100" as Petitioners. As noted by Respondents, CPLR 1024, which provides for the naming of unknown parties as defendants in an action, does not provide for the naming of unidentified Petitioners in an Article 78 proceeding. Moreover, Petitioners have failed to come forward with any statutory authority for naming unknown Petitioners, and merely assert that there are similarly situated individuals who are presently unknown since Respondents control this information.^[FN3] Finally, this Court's own review of Article 78 failed to reveal any authority for naming unidentified Petitioners. This Court also notes that, in any event, Petitioners have failed to demonstrate any efforts they took to ascertain the identities of the unidentified Petitioners and have failed to refute Respondents' evidence that documents in Petitioners' possession reveal the identities of other correction officers similarly situated to the individual Petitioners. Accordingly, that branch of the motion to dismiss the petition with respect to the Petitioners named John Does "1" through "100" is granted, and the petition is dismissed as to Petitioners John Does "1" through "100".

Standing of Petitioner Union

Respondents next contend that Petitioner Union lacks standing under the rule of Society of the Plastics Industry v County of Suffolk (77 NY2d 761, 771). In Society of the Plastics Industry, the Court of Appeals held that three requirements must be met for an association such as Petitioner Union to have standing. First, one or more of the individual members of the association must have standing to sue. Second, the association must demonstrate that the interests it asserts in the action or proceeding are related to the association's purpose. "Third, it must be evident that neither the asserted claim nor the appropriate relief requires the participation [*7]of the individual members" (Id. at 771). Respondents assert that Petitioner Union fails the third prong of the test set forth in Society of the Plastics Industry. Specifically, Respondents contend that the individual circumstances of each individual Petitioner would need to be explored to determine what damages they suffered in the unlikely event that it is determined that they are entitled to any relief. Petitioners, in opposition, merely contend that Petitioner Union is an appropriate party to litigate issues which have a direct impact on its members.

Both Respondents and Petitioners fail to address the fact that Petitioner Union, as a signatory of the CBA, has direct standing to assert the remaining claims in this proceeding and need not satisfy the standing test set forth in Society of the Plastics Industry.^[FN4] In any event, the participation of the individual Petitioners would not be required in this proceeding as asserted by Respondents. The individual Petitioners' damages, if any, may be ascertained from employment records which are in the possession of the parties.

Failure to State a Cause of Action

Finally, Respondents contend that the petition fails to state a cause of action. On a motion pursuant to CPLR 7804(f) to dismiss the petition, "only the petition is to be considered and all of its allegations are deemed to be true" (Matter of Zaidins v Hashmall, 288 AD2d 316, 316-317; see also Alabi v Community Bd. No. 2 of Brooklyn, 17 AD3d 459). The allegations asserted in the petition that Respondent Department violated the terms of the CBA by deducting individual Petitioners sick leave while the determination of the medical consultant was pending is sufficient to state a justiciable controversy. Accordingly, that branch of Respondents' motion seeking dismissal of the petition on the ground that it fails to state a cause of action is denied.

Conclusion

In light of the foregoing, Respondents' motion to dismiss is granted, in part, as follows: Petitioners' claims that Respondents violated GML § 207-c are dismissed. The petition is dismissed with respect to Petitioners named John Does "1" through "100". The remaining branches of Respondents' motion are denied.

Respondents shall serve and file an answer to the petition within 20 days of service of this order with notice of entry (CPLR 7804[f]). The petition is adjourned to September 19, 2008 to accommodate the service and filing of the foregoing answer and Petitioners' reply, if any.

To the extent that the parties address Petitioners' application for a preliminary injunction, [*8]which was contained in Petitioners' order to show cause dated July 5, 2007 and annexed petition, the Court denies that application with leave to renew after issue is joined.

Dated: White Plains, New York

August 8, 2008

/s/

Jeffrey A. Cohen

Acting Supreme Court Justice