In this Article 78 proceeding, several captains and a lieutenant within the Emergency Medical Services Division of the New York City Fire Department, along with their union, assert that the position of EMS Deputy Chief is subject to competitive examination under Civil Service Law.

Respondents claim that the City of New York reorganized and placed the position of EMS Deputy Chief as a managerial detail within the title of Supervising Emergency Medical Service Specialist, Level II. As a result, only a single written competitive examination is [*2]required for promotion to the title, but no additional examinations are required to move within the title for an EMS Captain to become an EMS Deputy Chief. Respondents contend that this reorganization was "broadbanding" permissible under the Civil Service Law.

Petitioners also seek a preliminary injunction enjoining the City from promoting individuals to the position of EMS Deputy Chief pending this proceeding.

This decision addresses both the petition and the motion for a preliminary injunction.

The individual petitioners are members of the Uniformed Emergency Medical Services Officers Union, DC 37, Local 3621, AFSCME, AFL-CIO (Local 3621), which represents FDNY EMS Captains and EMS Lieutenants. According to petitioners, there are three ^[FN1] competitive civil service titles within the FDNY EMS (Second Verified Petition ¶ 30), and the highest title is Supervising Emergency Medical Service Specialist (SEMSS), which has two assignment levels, Level I (Lieutenant) and Level II (Captain). (Id. ¶ 34; Answer ¶ 34.) According to petitioners, the SEMSS title is a promotional title from the titles of Emergency Medical Specialist (EMT) and Emergency Medical Specialist (Paramedic). That is, petitioners claim that only FDNY EMTs or paramedics are eligible to sit for the examination for the SEMSS promotional title. (Id. ¶ 33.)

Petitioners allege that there is no competitive examination for the position of Captain (SEMSS-Level II) (id. ¶ 36), and that only Captains may be considered for the position of EMS Deputy Chief, which is also not subject to a competitive examination. (Id. ¶¶ 62.)

On October 31, 2012, the FDNY issued an announcement that it would be taking applications from EMS Captains for the position of EMS Deputy Chief. (Second Verified Petition, Ex I.) The announcement set forth eligibility criteria, and stated that "Officer candidates meeting the above criteria may be contacted by EMS Operations to participate in an interview." (Id.)

Petitioners claim that this job announcement was a Notice of Examination for a non-written, competitive promotional test for the Deputy Chief position (Second Verified Petition ¶ 87); respondents deny that the announcement was a Notice of Examination. (Answer ¶ 88.)

On November 28, 2012, petitioners allegedly filed appeals with respondent New York City Department of Citywide Administrative Services (DCAS)^[FN2] and the New York City Civil Service Commission, asserting that the job announcement failed to comply with the rules and regulations of DCAS and with civil service requirements applicable to a Notice of Examination [*3]for a promotional title. (Second Verified Petition, Exs J [DCAS appeal], K [Commission appeal].)

According to petitioners, the New York City Civil Service Commission refused to accept petitioners' papers, and DCAS accepted petitioners' papers "for informational purposes only." (Second Verified Petition ¶ 93; see also Second Verified Petition, Ex L [Affirmation].)

On December 4, 2012, petitioners commenced this Article 78 proceeding against the City of New York, the Mayor, the FDNY and its commissioner, DCAS and its commissioner, and the City of New York Civil Service Commission (collectively, the City respondents).

Meanwhile, in a letter dated December 19, 2012 to petitioners' counsel, DCAS wrote, in relevant part:

"Rule 8.2.1 (3) provides for appeals to DCAS regarding the scheduling and conduct of non-written promotion examinations by an examining agency. The FDNY is not conducting a promotion examination. It is filling a detail within a title, specifically, within Level II of Supervising Emergency Medical Specialist. Therefore, Rule 8.2.1 (3) does not authorize DCAS to hear this appeal, and the various other provisions you cite regarding requirements for promotion exams do not apply."

On or around December 18, 2012, petitioners sought, by order to show cause, a temporary restraining order and a preliminary injunction "forbidding Respondents from promoting candidates to the position of Deputy Chief. . . and enjoining Respondents from promoting individuals under the current testing and promotion framework" pending this Article 78 proceeding. This Court declined to grant a temporary restraining order pending hearing or determination of the motion.

The City respondents opposed the motion. According to the City respondents, DCAS's predecessor, the Department of Personnel, created the title of SEMSS-Level I and II in or about March 1996, when the EMS workforce was transferred from the New York City Health and Hospitals Corporation (HHC) to the FDNY. (Klimowicz Opp. Aff. ¶ 5.) The City respondents maintained that, within SEMSS-Level II, there are three discretionary assignments (Captain, Deputy Chief, and Division Commander) and three managerial details (Deputy Assistant Chief, Assistant Chief, and Chief.) (Id. ¶ 6.) The City respondents further asserted,

"These discretionary assignments are not separate civil service titles, nor are they promotions within the meaning of the civil service law. These assignments are not obtained through the use of a competitive civil service examination, nor does a civil service eligible list exist for these assignments. Rather, these are discretionary assignments made solely by the FDNY."

(Id.) In sum, the City respondents claimed, "what petitioners are in effect seeking is for this Court to convert discretionary assignments and managerial details existing within the SEMSS title into separate and distinct civil service positions." (Mulligan Opp. Affirm. ¶ 6.) According to the City respondents, "the decision to have assignment levels within a title, as opposed to [*4]creation of a separate civil service position, are among the powers of DCAS." (Klimowicz Opp. Aff. ¶ 8.)

In reply, petitioners asserted that the duties of the EMS Deputy Chief position require greater skills and additional tasks such that the position constitutes a promotion with the meaning of the civil service law. (Zapata Reply Affirm. ¶ 36.) In a sur-reply, the City respondents pointed out that Local 3621 does not represent EMS Deputy Chiefs, which are represented by the EMS Superior Officers Association (EMS/SOA). (Mulligan Sur-Reply Affirm. ¶ 5.)

By a so-ordered stipulation dated January 2, 2013, petitioners agreed to amend the petition to join EMS/SOA as a respondent and to adjourn the return date of the petition, as amended, to March 28, 2013, and the return date was further adjourned to May 16, 2013 by order dated April 18, 2013.

Meanwhile, on February 20, 2013, petitioners filed an amended petition with the County Clerk. The amended petition asserted six causes of action, two of which were in the original petition.

In its answer to the amended petition, respondent EMS/SOA claimed that, at one time, the titles of Deputy Chief and Division Commander were considered managerial titles which were unrepresented by any union, not subject to collective bargaining, and not subject to civil service examination. (EMS/SOA Verified Answer ¶ 4; Cali Aff. ¶ 3.) According to EMS/SOA, prior to the transfer of the Emergency Medical Service from HHC to the FDNY, the title of EMS Captain was then a promotional title from EMS Lieutenant, for which a written examination was given. (EMS/SOA Verified Answer ¶ 5.) However, a reorganization "eliminated EMS Captain as a separate promotional title and placed it instead as Assignment Level II within the civil service title of [SEMSS]." (Id. ¶ 6.) Finally, the City "did a further reorganization and placed the titles of Deputy Chief and Division Commander within the SEMSS title, Level II, detailed as Deputy Chief and Division Commander, respectively." (Id.) "As a result of the broadbanding of the EMS titles, there is now only one promotional examination in EMS, i.e., that for promotion from EMSS [sic] to SEMSS." (Id. ¶ 8.)

On May 8, 2013, petitioners' counsel sent a Freedom of Information request to DCAS for copies of all documents relating to:

"1. Job classification analysis for the Supervising Emergency Medical Service Specialist civil service job title, who are employed by the New York City Fire Department, Emergency Medical Services, as contemplated in § 815(a)(2) of the New York City Charter;

2. The City of New York Department of Citywide Administrative Services' and New York City Fire Department's activities involving NYC Charter § 815(a)(6) of the New York City Charter with respect to the Supervising Emergency Medical Service Specialist [*5]civil service job title who are employed with New York City Fire Department, Emergency Medical Services, title; and,

3.Studies in regard to the grading and classifying of the Supervising Emergency Medical Service Specialist civil service job title, established criteria and guidelines for allocating positions to this class of positions, as contemplated in § 814(a)(2)."

(Second Verified Petition, Ex T.) By a letter dated May 13, 2013, DCAS's Records Access Officer wrote,

"Your letter dated May 8, 2013, requesting copies of any job classification analyses and related documents related to the Supervising Emergency Medical Service Specialist civil service title, has been reviewed in accordance with the provisions of the Freedom of Information Law.

Please be advised that this agency has no records responsive to your request. As I mentioned to you, this and other EMS titles were used by the Health and Hospitals Corporation prior to the transfer of the EMS functions to the Fire Department in 1996, and this agency has not conducted a job classification analysis for this title since that time."

By a notice of motion dated May 31, 2013, petitioners moved for leave amend the petition again, to assert nine causes of action and 15 different types of relief. The first three causes of action alleged that the City respondents failed to conduct a job classification analysis for the SEMSS title, and failed to assist DCAS or its commissioner in planning and preparing competitive examinations, in violation of NY City Charter § 815.

Although the second verified petition seeks relief that is not specifically associated with a specific cause of action, the second verified petition can be distilled into the following main contentions:

(1) Respondents failed to comply with New York City Charter §§ 815 (a) (2), (5), (6), and (15) (Second Verified Petition ¶¶ 25-26, 116-127 [first, second, third and fourth causes of action]);

(2) the EMS Deputy Chief position is an out-of-title assignment for Captains, in violation of Civil Service Law § 61 and DCAS rules (Second Verified Petition ¶¶ 77-85, 132-136 [fifth cause of action])

(3) the Civil Service Commission and DCAS should not have rejected petitioners' appeals (Second Verified Petition ¶¶ 93-94, 137-144 [sixth and seventh causes of action])

(4) The October 31, 2012 job announcement for EMS Deputy Chief did not comply with the requirements of the Civil Service Law (Second Verified Petition ¶¶ 86-92, 104-105, 145-147 [eighth cause of action]);

At the core of these contentions is petitioners' belief that the EMS Deputy Chief position should be subject to a competitive examination, like the title of Deputy Chief in the Fire Division of the FDNY. Petitioners' focus on the City Charter might imply that, had respondents performed a job classification analysis specifically for the EMS Deputy Chief position, the EMS Deputy Chief position would have been classified as its own civil service title in the competitive class (as opposed to a detail within the title of SEMSS-Level II).^[FN3]

As mentioned previously, petitioners claim that the EMS Deputy Chief position involves additional duties and responsibilities beyond the job specifications of the SEMSS title, so as to constitute a promotion within the meaning of the Civil Service Law. The second verified petition points out that the differences were such that EMS Deputy Chiefs won the right to have their own collective bargaining unit.

The City opposed the proposed amendment as time-barred. By decision and order dated July 9, 2014, this Court granted petitioners leave to amend, except as to the proposed ninth cause of action, which the Court ruled was time-barred and therefore plainly lacking in merit.

The Court rejected the City respondents' argument that the entire petition was time-barred, reasoning,

"On its face, the second verified petition does not seek to annul a classification, reclassification or alleged broadbanding of the EMS Deputy Chief position within the SEMSS-Level II title. For the alleged agency actions that petitioners seek to annul, and for the duties that might be the subject of mandamus to compel, the Court disagrees with the City respondents that petitioners were aggrieved as of March 1996, years before the agency actions that are being challenged here took place."

(Matter of DC37, Local 3621, AFSCME, AFL-CIO v City of New York, Sup Ct, NY County, July 9, 2014, Stallman J., at 22 [footnote omitted].)

On October 17, 2014, the City Respondents answered the Second Verified Petition.

The City respondents raise two threshold defenses to the Article 78 proceeding: (1) the proceeding is time-barred; and (2) the proceeding is an impermissible collateral attack on a prior administrative determination.

The statute of limitations for an Article 78 proceeding is four months. (CPLR 217 [1].) The City respondents argue that the statute of limitations should have started to run as of February 1983, or as of March 1996.

The City respondents claim that the SEMSS title, which has two assignment levels, resulted when HHC broadbanded ^[FN4] two titles—Supervising Ambulance Corpsman and Chief Ambulance Corpsman—into the SEMSS title in February 1983. (City Respondents' Mem. at 5.) According to the City respondents, DCAS's predecessor, the Department of Personnel, "functionally transferred" the SEMSS title into classified service of the City of New York, under the same status and salary held with HHC in March 1996 (id.), when the Mayor transferred the EMS workforce from HHC to the FDNY by Executive Order No. 27.

The City respondents are incorrect. The four month statute of limitations for the eight causes of action in this proceeding did not begin to run either in February 1983, or in March 1996.

For the causes of action that seek to annul an administrative act (e.g., the job announcement) or an administrative determination (e.g., DCAS's and the Commission's rejection of petitioners' appeals), the four month statute of limitations starts to run when an administrative determination is "final and binding." (CPLR 217 [1].)

"An administrative determination becomes final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party.'"

(Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194-195 [2007] [citations omitted].) "An administrative determination becomes final and binding' when the petitioner seeking review has been aggrieved by it." (Matter of Yarbough v Franco, 95 NY2d 342, 346 [2000] [citations omitted].)

As the Court explained in the prior decision which largely granted petitioners' motion for leave to amend the petition, the second verified petition, on its face, does not seek to annul a classification, reclassification or alleged broadbanding of the EMS Deputy Chief position within the SEMSS-Level II title. Thus, the four month statute of limitations should not be measured from the date of the transfer of the EMS workforce to the FDNY, or from the date that HHC broadbanded two positions into the SEMSS title.

Rather, petitioners seek to annul an announcement that the FDNY issued on October 31, 2012, that it would be taking applications from EMS Captains for the position of EMS Deputy [*6]Chief. The Article 78 proceeding was commenced on December 4, 2012, within four months of the FDNY announcement. Petitioners also challenge the refusal of DCAS and the Civil Service Commission to accept their appeals, which occurred on November 28, 2012. The Article 78 proceeding was commenced within days after DCAS's and the Civil Service Commission's rejection of petitioners' appeal. Thus, for the causes of action challenging administrative determinations, the Article 78 proceeding was timely commenced within four months of those determinations.

The City respondents maintain that the Article 78 proceeding "effectively" challenges prior administrative determinations. (City respondents' Mem. at 15.) That is, the validity of the administrative determinations that petitioners are challenging hinges upon the validity of prior administrative determinations; a ruling in petitioners' favor would necessarily invalidate the prior administrative determinations upon which the current administrative determination is based. However, this defense is not a statute of limitations defense, but rather presents the question of whether the Article 78 proceeding constitutes a collateral attack, i.e., an impermissible, indirect attack upon a prior administrative determination. This question is discussed in the next section of this decision.

Contrary to the City respondents' argument, Lenihan City of New York (58 NY2d 679 [1982]) is not identical to this case. As the Court explained on the prior motion, the issue presented in Lenihan was whether a declaratory judgment action was timely commenced, which involved the question of when the petitioners became aggrieved by the administrative act that they were seeking to annul, i.e., a personnel resolution adopted on March 21, 1979. The Appellate Division reasoned that the plaintiffs should have challenged the personnel resolution through an Article 78 proceeding, within four months after the personnel resolution was adopted. (Lenihan v City of New York, 85 AD2d 562 [1st Dept 1981], affd 58 NY2d 679 [1982].) The Court of Appeals agreed that the declaratory judgment action should have been brought as an Article 78 proceeding, and that the action was time-barred. However, the Court of Appeals found that plaintiffs were not aggrieved on March 21, 1979, when the personnel resolution was adopted, but on May 11, 1979, when a directive implementing the earlier personnel resolution was officially promulgated. (Lenihan, 58 NY2d at 682.)

Here, unlike Lenihan, petitioners commenced an Article 78 proceeding, not a declaratory judgment action. Unlike the personnel resolution in Lenihan, the administrative determinations being challenged in this proceeding were not implemented by the broadbanding that purportedly occurred in 1983, or by the transfer of the EMS workforce to the FDNY in 1996. The City respondents are arguing that petitioners were aggrieved years before the actual occurrence of the administrative determinations that petitioners are seeking to annul, which is logically impossible. The Court cannot find that the statute of limitations as to the challenged determinations began to run before the determinations had actually been made.

For the cause of actions that allege that the City respondents did not perform their duties under the NY City Charter, the issue of whether these causes of action are time-barred is more complicated. One of the questions which may be raised in an Article 78 proceeding is whether a body or officer failed to perform a duty enjoined upon it by law (CPLR 7803 [1].) "This question corresponds to the common law writ of mandamus to compel." (14-7803 Weinstein-Korn-Miller, [*7]NY Civ Prac: CPLR ¶ 7803.01.) However, on its face, the second verified petition does not seek to compel the City respondents to perform their duties, but seeks instead a judgment declaring that the City respondents did not perform their duties.^[FN5]

Assuming, for the sake of argument, that these causes of action of the Article 78 petition are in the nature of mandamus to compel, the City respondents did not meet their burden of demonstrating the statute of limitations defense to these causes of action. "In an article 78 proceeding in the nature of mandamus to compel, the Statute of Limitations commences running when, after a demand, a body or officer refuse[s] * * * to act or to perform a duty enjoined by law" (Matter of Waterside Assoc. v New York State Dept. of Envtl. Conservation, 72 NY2d 1009, 1010 [1988] [internal quotation marks and citation omitted].) "Thus, a petitioner must make a demand and await a refusal, and the limitations period does not commence until the refusal. The refusal must be clear and explicit, and if there is no refusal, the limitations period does not begin to run." (Matter of Flosar Realty LLC v New York City Hous. Auth., 127 AD3d 147, 155 [1st Dept 2015] [internal quotation marks, citations and emendation omitted].)

"However, the aggrieved party may not unreasonably delay in making the demand, and unexcused delay may constitute laches. The demand must be made within a reasonable time after the right to make the demand occurs. The reasonable time requirement for a prompt demand should be measured by CPLR 217 (1)'s four-month limitations period, and thus, a demand should be made no more than four months after the right to make the demand arises."

(Matter of Zupa v Zoning Bd. of Appeals of Town of Southold, 64 AD3d 723, 725 [2nd Dept 2009] [internal quotation marks, citations and emendation omitted].) Here, the City respondents took no position as to when petitioners' right to make a demand arose.

Assuming, for the sake of argument, that the first though fourth causes of action of the Second Verified Petition are in the nature of a declaratory judgment action, the Court of Appeals has held:

"the statute of limitations in an action for a declaratory judgment is determined by reference to the gravamen of the claim or the status of the defendant party.' If a declaratory judgment action could have been commenced by an alternative proceeding for which a specific limitation period is statutorily provided, then that period' applies instead of CPLR 213(1)'s six-year catchall provision. As a result, we must examine the [*8]substance of [the] action to identify the relationship out of which the claim arises and the relief [is] sought.'"

(Gress v Brown, 20 NY3d 957, 959 [2012] [internal citations omitted].) Here, the first through fourth causes of action could have been asserted as an Article 78 petition in the nature of mandamus to compel. Accordingly, the four month statute of limitations under CPLR 217 applies to these causes of action. Because the City respondents took no position as to when petitioners should have made a demand upon them to perform their duties under the City Charter, the City respondents have not demonstrated that these causes of action for declaratory judgment are time-barred.

The City respondents also argue that the petition should be dismissed because it is an impermissible collateral attack upon HHC's determination that broadbanded the SEMSS title, which purportedly occurred in 1983.

"It is well established that determinations which are made within the jurisdiction of the official or body concerned [ ] stand unless they are avoided by a direct attack where the infirmity is alleged to be that the action has been arbitrary or capricious." (Matter of Foy v Schechter, 1 NY2d 604, 612 [1956].) Thus, "[p]rior administrative actions as to which no challenge has been brought for judicial review may not be collaterally challenged in such proceedings brought for direct review of other administrative actions based on the prior actions." (24 Carmody-Wait 2d § 145:22, at 331; see e.g. Matter of Lewis Tree Serv. v Fire Dept. of City of NY, 66 NY2d 667 [1985] [an unsuccessful bidder, who did not bring an Article 78 proceeding to challenge the Comptroller's determination that the unsuccessful bidder violated the Labor Law, may not collaterally attack the determination later by bringing an Article 78 proceeding to annul a FDNY contract awarded to another bidder because of the Comptroller's prior determination]; see also Cahill v Harter, 277 AD2d 655, 656 [3d Dept 2000] [having failed to commence a timely Article 78 proceeding to challenge a prior consent order and an administrative order, defendants could not collaterally attack the propriety of the orders in a subsequent enforcement proceeding].)

Contrary to the City respondents' argument, petitioners are not attempting to collaterally attack HHC's broadbanding of the titles of Supervising Ambulance Corpsman and Chief Ambulance Corpsman into the SEMSS title, which therefore resulted in two assignment levels within the SEMSS title. The relief that petitioners seek would not cause an assignment level to be created or removed from within the SEMSS title. (Cf. Steen v Quaker State Corp., 12 AD3d 989, 990 [3d Dept 2004] [plaintiffs sought to modify an agency order fixing geographic boundaries to include their lands; any challenge to the agency order as to the accuracy of the boundaries should have been asserted in a timely CPLR article 78 proceeding].)Neither are petitioners challenging the classification of the SEMSS title into classified service, which occurred in May 1996 when the EMS workforce was transferred to the FDNY.

Rather, the administrative action that petitioners are collaterally attacking is the placement of the Deputy Chief position as a detail within the SEMSS title, Level II. Once the Deputy Chief position was placed as a detail within the SEMSS title, Level II, no civil service examination was required to move within the SEMSS title to the Deputy Chief position. (See Matter of Kitchings v Jenkins, 85 NY2d 694, 699 [1995].)

According to the EMS/SOA, the position of Deputy Chief was placed within the SEMSS title, Level II, as a detail "[s]ome time after the OCB's [Office of Collective Bargaining's] Board of Certification decision that persons in the titles of Deputy Chief and Division Commander are [*9]eligible for collective bargaining." (EMS/SOA Answer ¶ 6.) The Board of Certification apparently recognized EMS Deputy Chiefs eligible for collective bargaining in July 2002. (See EMS/SOA Answer ¶ 3.)

The record indicates that Local 3621 was in existence in 2002, given a fully executed memorandum of agreement between DC37, Local 2507, Local 3621 and the City, whose term was from July 1, 2002 through June 30, 2006. (City Respondents' Answer, Exhibit 1.) Because Local 3621 could have commenced a timely Article 78 proceeding in 2002 to challenge the placement of the Deputy Chief position as a detail within the SEMSS title, Level II, petitioners are not permitted to collaterally attack that administrative act in this Article 78 proceeding. Put differently, the Court must reject any argument that petitioners raise now that the Deputy Chief position ought to be a promotional civil service title instead of a detail within the SEMSS title, Level II.

"Where the City respondents' determination is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed.'" (Matter of New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, — NY3d &mdash, 2016 WL 1190470, 2016 NY LEXIS 428 [2016], quoting Matter of Nehorayoff v Mills, 95 NY2d 671, 675 [2001].)

Here, petitioners' argument that the October 31, 2012 job announcement for EMS Deputy Chief position did not comply with the requirements of the Civil Service Law or DCAS rules is without merit. As discussed above, the Deputy Chief position is a detail within the SEMSS, Level II title, not a promotional civil service title. Therefore, Civil Service Law § 61 and DCAS Rule 5.3.16 (c) (Personnel Rules and Regs of the City of NY [55 RCNY Appendix A] ¶ 5.3.16) did not apply to this job announcement.

Thus, DCAS rationally determined that its rules did not authorize DCAS to entertain petitioners' appeal. (Personnel Rules and Regs of the City of NY [55 RCNY Appendix A] ¶ 8.2.1 [3].)

The New York City Civil Service Commission's refusal to accept petitioners' appeal was not arbitrary and capricious. The job announcement was neither a DCAS determination appealable to the Commission pursuant to NY City Charter § 813 (d), nor a DCAS appeal subject to review by the Commission pursuant to NY Charter § 814 (a) (3). Because the Deputy Chief position is not subject to promotional examination under civil service law and DCAS rules, petitioners could not challenge the job announcement before the Commission on the grounds that the job announcement did not comply with DCAS rules for a promotion exam and with Administrative Code § 15-110, which governs promotions in the FDNY.

Therefore, the sixth, seventh, and eighth causes of action of the petition are dismissed.

"Out-of-title work, other than on an emergency basis, is prohibited by Civil Service Law § 61 (2)." (Matter of Civil Serv. Empls. Assn., Local 100, AFSCME v Angello, 277 AD2d 576, 578 [3d Dept 2000].) "A violation of the out-of-title work prohibition of Civil Service Law § 61 (2) exists when an employee has been assigned to perform the duties of a higher grade, without [*10]a concomitant increase in pay, frequently, recurrently and for long periods of time.'" (Matter of City of Saratoga Springs v City of Saratoga Springs Civ. Serv. Commn., 90 AD3d 1398, 1400 [3d Dept 2011], quoting Matter of Sprague v Governor's Off. of Empl. Relations, 13 AD3d 849, 850 [3d Dept 2004].)

Here, petitioners allege that the EMS Deputy Chief position is an out-of-title assignment for Captains, in violation of Civil Service Law § 61 and DCAS rules (Second Verified Petition ¶¶ 134-136.) The City respondents argue that petitioners either do not have standing to allege out-of-title violations, or failed to exhaust their administrative remedies. The Court agrees.

As the City respondents indicate, the Second Verified Petition does not allege that any of the individual petitioners are working as a Deputy Chief. Indeed, petitioner Variale is a Lieutenant in the FDNY EMS, not a Captain. (Second Verfied Petition ¶ 12.)Those in the SEMSS title who are detailed as Deputy Chiefs are not represented by Local 3621, but are represented instead by the EMS/SOA. (EMS/SOA Answer ¶ 3.) Although an alleged violation of Civil Service Law § 61 (2) could be based on the work of others who are allegedly performing out of title work, the individual petitioners have not alleged an injury in fact due to the out-of-title assignments of others, for example, a layoff, diminution in pay benefits, or loss of promotional opportunities (See Matter of Askew v New York City Dept. of Envtl. Protection, 24 AD3d 544, 545 [2d Dept 2005].)

Because it appears that there is no member of Local 3621 who is detailed to the assignment of Deputy Chief, Local 3621 therefore lacks standing as an organization to sue for violations of out-of-title work. (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004].)

Assuming, for the sake of argument, that one of the individual petitioners or a Local 3621 member were performing out-of-title work, and would therefore have standing, the City respondents also point out that a claim of out-of-title work is subject to the grievance procedure under Local 3621's collective bargaining agreement with the City. A claim of out-of-title work falls under the definition of "grievance" under Article VII, Section 1 (c) of the collective bargaining agreement, and Article VII, Section 15 states that the grievance and arbitration procedure contained in the collective bargaining agreement "shall be the exclusive remedy for the resolution of disputes defined as grievances' herein."(Second Verified Petition, Ex D.)^[FN6] Because petitioners did not go through the exclusive grievance/arbitration procedure, the cause of action for alleged violations of out-of-title work would had to have been dismissed, on the ground that petitioners did not exhaust their administrative remedies under the collective bargaining agreement. (Carter v Dept. of Correction of the City of NY, 92 AD2d 465, 465 [1st Dept 1983], affd 62 NY2d 670 [1984].)

Therefore, the fifth cause of action of the petition is dismissed.

The first through fourth causes of action allege that the City respondents failed to comply with the Section 815 of the New York City Charter, which sets forth certain powers and duties of the heads of city agencies. It states, in relevant part:

"a. Subject to the civil service law and applicable provisions of this charter, heads of city agencies shall have the following powers and duties essential for the management of their agencies in addition to powers and duties vested in them pursuant to this charter or other applicable law: . . .

(2) To participate with [DCAS] in job analyses for the classification of positions; . . .

(5) To assist [DCAS] in the determination of minimum qualifications for classes of positions and to review and evaluate qualifications of candidates for positions in the civil service;

(6) To assist the commissioner in the planning and preparation of open competitive examinations. . .

(15) To ensure and promote equal opportunity for all persons in appointment, payment of wages, development and advancement."

(NY City Charter § 815 [a] [2], [5], [6], and [15].) Petitioners assert that the City respondents failed to conduct a job classification for the SEMSS title, and that the City respondents failed to plan or prepare for competitive examinations for the SEMSS title. Petitioners also assert that the hiring practices of the City respondents failed to promote equal opportunity as contemplated under the City Charter.

To the extent that the alleged violations of the City Charter are based on the premise that the Deputy Chief position ought to have been a promotional, civil service title, for which a competitive examination is given, the petition fails. As discussed above, petitioners are not permitted to raise such an argument because they did not timely challenge the agency action that made the Deputy Chief position a detail within the SEMSS title, Level II. Because the job announcement was not an open competitive examination which required planning and preparation, petitioners have not demonstrated that the City respondents violated New York City Charter § 815 (a) (6).

Under the City Charter and DCAS rules,^[FN7] the head of the FDNY has the power and duty to participate and assist DCAS in job analyses for civil service titles within the FDNY. In support of their allegations that the City respondents did not conduct a job analysis for the SEMSS title, petitioners appear to rely on the May 13, 2013 letter of DCAS's Records Access Officer, who wrote that DCAS had not conducted a job classification analysis for the SEMSS title since the transfer of EMS functions to the FDNY in 1996. (Second Verified Petition, Ex U.)Assuming, for the sake of argument, that the response of DCAS's Records Access Officer amounts to an admission that DCAS had not conducted a job analysis of the SEMSS title since 1996, petitioners cannot show that the City respondents violated NY City Charter § 815 (a) (2) and (5).

New York City Charter § 815 (a) (2) does not specify how often a City agency and DCAS must conduct a job analysis. Neither does New York City Charter § 815 (a) (5) specify how often a City agency and DCAS must set the minimum qualifications for classes of positions. Neither provision specifies the level of assistance and participation that a City agency must provide DCAS, which therefore leaves the level of assistance and participation to the discretion of the City agency.

When an examination for a civil service position is given, DCAS rules require a job analysis be conducted.^[FN8] However, as discussed above, the job announcement for the Deputy Chief position was not subject to a civil service examination.

Thus, to the extent that this branch of the Article 78 petition seeks relief in the nature of mandamus to compel the City respondents to comply with a duties required under New York City Charter § 815 (a) (2), (5) and (15), the petition fails. First, petitioners do not allege that they made a demand upon the City respondents, and that the City respondents refused. (Adams v City of New York, 271 AD2d 341, 341-42 [1st Dept 2000].) Second, the duties imposed by New York City Charter § 815 (a) (2), (5), and (15) are not ministerial duties, to which petitioners have a clear legal right to relief. (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005].)

Petitioners do not dispute that DCAS set the minimum qualifications for the SEMSS title in 1996. Petitioners' desire that respondents revise the minimum qualifications of the SEMSS title concerns the exercise of the City respondents' discretionary responsibilities. (See Matter of Vestal Teacher's Assn. v Vestal Cent. School Dist., 5 AD3d 922, 923 [3d Dept 2004].)

The City respondents' power and duty under NY City Charter § 815 (a) (15) to promote equal opportunity cannot be interpreted as imposing a ministerial duty to administer a competitive examination for the position of Deputy Chief, and thus a duty capable of being enforced in an Article 78 proceeding. (See Klostermann v Cuomo, 61 NY2d 525, 541 [1984] ["The activity that the courts must be careful to avoid is the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches"].)

To the extent that the first through fourth causes of action are in the nature of a declaratory judgment action, the issue of whether the City respondents failed to comply with the New York City Charter is not justiciable. The particular charter provisions do not establish a standard of conduct for which the courts can compel performance. (Cf. Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215, 220 [1994]; cf. Jiggetts v Grinker, 75 NY2d 411, 415 [1990].) Granting petitioners the declaratory relief they seek would involve the courts in "making broad policy choices on complex societal and governmental issues, involving the ordering of priorities." (Matter of Natural Resources Defense Council, 83 NY2d at 220.)

Because the petition is denied and the proceeding is dismissed, petitioners' motion for a preliminary injunction pending determination of the proceeding is denied as moot.

Accordingly, it is hereby

ADJUDGED that the petition is denied, and the proceeding is dismissed; and it is further

ORDERED that petitioners' motion for a preliminary injunction (Motion Seq. No. 002) is denied.