The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 were read on this motion to DISMISS.

This action arises from the enactment of new rules for New York City Police Department (NYPD) officers. Plaintiffs, the Police Benevolent Association of the City of New York and its President, Patrick G. Hendry, brought this action against defendants, City of New York, Mayor Eric L. Adams, the NYPD, and (former) Police Commissioner Edward A. Caban. Defendants move to dismiss this action. Defendants argue that plaintiffs may bring this dispute only through the parties' collective-bargaining agreement's grievance and arbitration process. The motion is granted to the extent that this action is stayed pending the Board of Collective Bargaining's (BCB) determination on this issue and otherwise denied.

In 2009, the NYPD implemented Personnel Bureau Memorandum (PBM) 95: rules governing use of anabolic steroids, growth hormones, and nutritional supplements in the NYPD. In 2010, plaintiffs met with defendants to convince defendants to modify PBM 95. Plaintiffs argued that defendants could not institute these new rules without bargaining with plaintiffs. (NYSCEF No. 1 at 3.) Defendants refused to modify the PBM. (Id. at 4.)

In 2011, plaintiffs brought an improper-practice petition before the BCB—one of the [*2]Office of Collective Bargaining's (OCB) adjudicative boards ^[FN1] —to challenge the memorandum. (Id.) The parties settled their dispute with a stipulation. Plaintiffs agreed to withdraw the improper-practice petition, and defendants agreed to replace PBM 95 with a revised PBM (2011 rules). (NYSCEF No. 14 at 2 [stipulation].)

In 2023, defendants revoked the 2011 rules and replaced them with new rules. According to plaintiffs, the new rules have four new components: (i) "the requirement that Police Officers mandatorily report prescriptions for 'prohibited substances' to their District Surgeon"; (ii) that District Surgeons may "confer with a Police Officer's personal physician regarding the propriety of their prescription for any such 'prohibited substances'"; (iii) that Police Officers prescribed a 'prohibited substance' not only strictly comply with their physician's guidelines and dosages, but they must also comply with all directions from their District Surgeon and personnel employed by the NYPD's Medical Division regarding that prescription"; and (iv) "a 'zero tolerance' policy in all instances where a member tests positive for a 'prohibited substance,' and the establishment of a finite list of approved dietary supplements regardless of whether numerous other supplements are legal for the general public across the State to purchase and consume." (NYSCEF No. 1 at 5 [complaint].)

In 2024, plaintiffs brought an improper-practice proceeding before the BCB alleging that defendants promulgated the new rules without complying with mandatory collective-bargaining requirements. (See NYSCEF No. 22 at 5 [BCB hearing transcript].) Separately, plaintiffs brought an action in this court for breach of the 2011 stipulation agreement. Plaintiffs contend that revoking and replacing the 2011 rules constitutes a breach of the 2011 agreement.

Defendants now move to dismiss this action. Defendants argue that this court lacks jurisdiction to adjudicate plaintiffs' claims. The motion is granted to the extent that this action is stayed pending BCB's determination that the dispute about breach of the 2011 agreement is subject to the parties' collective bargaining agreement's (CBA) grievance and arbitration process.^[FN2]

Defendants move to dismiss plaintiffs' action for three reasons. According to defendants, (i) plaintiffs' action is really one alleging improper-practice against defendants, and that improper-practice petitions must be filed with BCB; (ii) under the parties' CBA, a dispute about whether defendants breached the 2011 agreement must be arbitrated through the CBA's grievance and arbitration process; and (iii) that plaintiffs' claims fail to state a cause of action.

I. Improper Practice

Defendants first argue that plaintiffs' breach-of-contract claim is effectively a claim for failure to negotiate with plaintiffs in good faith—an improper-practice claim that should be heard before BCB, not this court. (NYSCEF No. 6 at 6 n 2.) Plaintiffs argue that this action is for breach of contract, not improper practice. (NYSCEF No. 12 at 6.)

Plaintiffs also argue that defendants are judicially stopped from making this argument. Plaintiffs say that in a February 2025 hearing before BCB, defendants argued that the 2011 agreement was inadmissible in an improper-practice proceeding. (See NYSCEF No. 22 at 7-8.) Defendants conceded, however, that the 2011 agreement would be admissible in a proceeding concerning breach of that agreement.^[FN3] (See id.) The BCB sustained defendants' evidentiary objection. (See id. at 8-9.)

This court concludes that the judicial-estoppel doctrine applies here, but only to some extent. That doctrine "precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed." (All Terrain Properties, Inc. v Hoy, 265 AD2d 87, 93 [1st Dept 2000] [internal quotation marks omitted].) Because defendants' position during the BCB hearing was that the 2011 agreement may not be used to support an improper-practice petition, this court concludes that defendants are judicially estopped from arguing here that plaintiff's breach-of-contract claim should have been brought as an improper-practice proceeding before BCB. Nonetheless, defendants are not estopped from arguing that a claim alleging breach of the 2011 agreement constitutes a grievance under the CBA—a distinct and not-necessarily conflicting argument, which will be addressed below. (See Silo v City of New York, 210 AD3d 607, 608 [1st Dept 2022] [holding that judicial estoppel does not preclude party from asserting a theory "neither contrary to nor inconsistent with an earlier assumed position"].)

II. CBA's Grievance-and-Arbitration Process

Defendants argue that this court lacks jurisdiction over plaintiffs' breach-of-contract claim, because plaintiffs have not availed themselves of the CBA's grievance and arbitration process. (NYSCEF No. 6 at 5.) Defendants contend that a claim for breach of the 2011 agreement constitutes a grievance under the CBA. (Id.) Alternatively, defendants argue that BCB must determine the question of whether a breach of the 2011 agreement constitutes an arbitrable grievance. (Id.)

Plaintiffs argue that defendants' alleged breach of the agreement is not subject to the CBA's grievance and arbitration process. Plaintiffs contend that because defendants revoked the rules, there are no rules or regulations on which plaintiffs could assert a grievance. (NYSCEF No. 12 at 5.) Plaintiffs further emphasize that the 2011 agreement does not clearly provide that it is subject to the CBA procedures (id. at 2) and that "[h]ad the parties intended for this agreement to be enforced only through the grievance and arbitration mechanism, the document would not have allowed for it to be offered as evidence in a 'judicial or other proceeding' to enforce its obligations" (id. at 5).

The court agrees with defendants. The question here is whether revocation of the 2011 [*3]agreement and passage of new rules would constitute a grievance under the CBA. In other words, the parties dispute whether they agreed to use the grievance-and-arbitration process for a dispute arising from alleged breach of the 2011 agreement. (See Matter of City of Johnstown (Johnstown Police Benevolent Assn.), 99 NY2d 273, 278 [2002] ["A grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so."].)

The arbitrability of a dispute is subject to a two-pronged test. The first prong is the "may-they-arbitrate" prong: "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." (Id. at 278.) The second prong is the "did-they-agree-to-arbitrate" prong: whether, under the CBA, "the parties have agreed to arbitrate the dispute at issue." (Id.) The parties do not dispute the "may-they-arbitrate" prong. The court therefore considers only the "did-they-agree-to-arbitrate" prong.

A court deciding the "did-they-agree-to-arbitrate" prong "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." (Matter of Board of Educ. of Watertown City School Dist. (Watertown Educ. Assn.), 93 NY2d 132, 143 [1999].) If a reasonable relationship exists, "the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them." (Id.) And, indeed, the BCB is authorized to "determine whether a dispute is the proper subject for a grievance and is arbitrable" under the CBA, "and its decision is entitled to deference." (New York City Dept. of Sanitation v MacDonald, 215 AD2d 324, 324 [1st Dept 1995], affd 87 NY2d 650 [1996].)

This court concludes that the dispute about alleged breach of the 2011 agreement is reasonably related to the CBA's subject matter. The CBA defines "grievance" as "a claimed violation, misinterpretation or inequitable application of the provisions of" the CBA or "a claimed violation, misinterpretation or misapplication of the written rules, regulations or procedures of the Police Department." (NYSCEF No. 9 at 25.) Whether the 2011 agreement was breached by defendant's revocation and replacement of the 2011 rules pertains to whether there is a misapplication of police rules. That question goes to which rules apply and whether the NYPD is improperly applying the new 2023 rules or failing to apply the 2011 rules.

Plaintiffs' motion is granted to the extent that this action is stayed pending BCB's determination that the dispute about breach of the 2011 agreement is subject to the CBA's grievance and arbitration process.

The court does not reach the parties' arguments about whether plaintiffs have otherwise stated a cause of action for breach of contract.

Accordingly, it is

ORDERED that defendants' motion is granted to the extent that this action is stayed pending the BCB's determination whether the dispute about breach of the 2011 agreement is subject to the CBA's grievance-and-arbitration process.