Bennetti v. City of New York

Order Supreme Court, New York County (Helen Freedman, J.), entered on or about September 29, 1989, which granted respondents’ motion under CPLR 3211 (a) (7) and 7804 (f) for an order dismissing petitioners’ CPLR article 78 petition, is unanimously affirmed, without costs. Petitioners are New York City firefighters. Originally, their salaries were governed by a four-stage salary grade schedule codified in Administrative Code of the City of New York § 15-107. Although this provision of the Administrative Code has not been amended, the salary grade has been adjusted to six stages as the result of an April 14, 1989 decision of an Impasse Panel that resolved a collective bargaining dispute between the petitioners’ union and the city pursuant to Administrative Code § 12-311 (c). The petitioners do not dispute that the decision of the Impasse Panel is the equivalent of a collective bargaining agreement, but nonetheless argue that the Impasse Panel was without authority to alter the salary grade schedule by reason of language in the Administrative Code to the effect that the Panel may not take any action that requires legislative implementation without such action by the Legislature (Administrative Code § 12-311 [c] [3] [e]; [4] [a], [e]). The Court of Appeals has held, despite similar language in Civil Service Law § 204-a, that collective bargaining may affect legislative provisions unless there is a specific prohibition in the statute in question (Board of Educ. v Associated Teachers, 30 NY2d 122, 129). It has been noted that legislative prohibition must be "plain and clear” (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744). Because there is no such plain and clear prohibition in Administrative Code § 15-107, adjustment of the salary grade schedule by the 240 equivalent of collective bargaining is effective, the provisions of Administrative Code § 12-311 (c) notwithstanding. Concur— Murphy, P. J., Carro, Rosenberger, Kassal and Smith, JJ.