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Decided on June 5, 2009
Supreme Court, Albany County



Richard S. Allen, ERIC J. BALON, KEVIN M. BARNAS, JAMES
BARNS, GEORGE B. BROWN, RODNEY CAMPBELL, ROBERT
CROSWELL, STEPHEN FARAGO, JOHN FAY, MARK FLEMING,
ROBERT L. GALLETTO, STEVEN C. GRAAP, CHARLES E.
GUESS, MARK W. HASKELL, JOHN R. HIBSCH, LARRY
JACKMAN, ERIC C. JANIS, MARK KOSS, ROBERT U. KREPPEIN,
JAMES LAND, MARK A. LESTER, DANIEL N. LYONS, KEVIN G.
MOLINARI, STEVEN A. NIGRELLI, ROBERT NUZZO, RICHARD
OYER, JR., KENNETH ROGERS and EUGENE J. STANISZEWSKI,
Petitioners,

against

New York State Division of the Budget, Respondent.




10421-08
POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC.
Richard E. Mulvaney, Esq., General Counsel Attorneys for Petitioners (Maria B. Morris, Esq.) 120 State Street Albany, New York 12207 ANDREW M. CUOMO Attorney General of the State of New York Attorneys for Respondent, New York State Division of Budget (Christopher W. Hall, Esq.) NYS Department of Law -The Capitol Albany, New York 12224 John Egan, J.
On April 2, 2006, Ralph B. Phillips (hereinafter "Phillips"), an inmate at the Erie County Correctional Facility in Alden, New York, escaped from custody. On June 10, 2006 New York State Police Trooper Sean Brown was shot and wounded while conducting a traffic stop in Chemung County, and Phillips, who was still at large, was identified as the likely suspect. An extensive manhunt for Phillips then ensued over the next three months in western New York and northern Pennsylvania. On August 31, 2006, in Chautauqua County, Phillips shot Troopers Joseph Longobardo and Donald Baker, resulting in the death of Trooper Longobardo, and serious injuries to Trooper Baker. Eight days later, on September 8, 2006, Phillips was captured in northern Pennsylvania. He is currently in the custody of the New York State Department of Correctional Services at the Clinton Correctional Facility in Dannemora, New York as a result of his plea of guilty to aggravated murder and attempted aggravated murder in Supreme Court, Chautauqua County. People v. Phillips 56 AD3d 1163 (4th Dept.,2008). This proceeding involves a request for overtime compensation to certain supervisory officers of the New York State Police who participated in the Phillips manhunt and a subsequent decision by the New York State Division of Budget (hereinafter "Division of Budget" or "respondent") to modify, in part, that request.
Specifically, petitioners bring this CPLR Article 78 proceeding seeking an Order vacating the decision of the Division of Budget, dated August 25, 2008 (modified on December 30, 2008) which 1) denied additional overtime compensation to Majors and Captains of the New York State Police; 2) amended the overtime rate calculations for Lieutenants; and 3) permitted overtime compensation for Lieutenants for only certain days. Petitioners assert that the Division of Budget's determination was arbitrary, capricious and an abuse of discretion. The Division of Budget opposes the petition [FN1]
The 28 petitioners serve as Lieutenants, Captains and Majors in the New York State Police. Pursuant to the Collective Bargaining Agreement (hereinafter "CBA") negotiated between the State of New York and the Police Benevolent Association of the New York State Troopers, Inc. (hereinafter "PBA"), Lieutenants, Captains and Majors receive annual salaries and an overtime premium, and are not ordinarily eligible to receive overtime payments. In certain emergency situations, however, the Civil Service Law does permit any otherwise ineligible New York State employee to be paid overtime, and that is the crux of this proceeding.
Civil Service Law

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New York Law