Matarazzo v. Safir

—Judgment, Supreme Court, New York County (Helen Freedman, J.), entered January 8, 1998, which, in a CPLR article 78 proceeding by petitioner police officers against respondent Police Department alleging wrongful deprivation of meal breaks as punishment for failure to meet a ticket writing quota, and seeking compensation for lost meal time and a cease and desist order, granted respondents’ cross motion to dismiss the petition, unanimously affirmed, without costs.

The proceeding should be dismissed for failure to allege the existence of a quota, as defined in Labor Law § 215-a (2), there being no indication of how many tickets petitioners had to write within what period of time. Giving the petition every favorable intendment, all that appears is that two supervising officers from two different precincts directed the individual petitioners to perform duties, during their meal breaks, that were likely to result in the issuance of tickets. This fails to support an inference that petitioners were punished for failure to meet a quota for issuing tickets in violation of Labor Law § 215-a. We note respondents’ abandonment on appeal of their argument that the proceeding is time-barred, and our disagreement with respondents that the parties’ collective bargaining agreement made impartial arbitration a remedy that petitioners were required to exhaust (compare, Carter v Department of Correction, 92 AD2d 465, affd 62 NY2d 670). Concur — Sullivan, J. P., Rosenberger, Tom and Wallach, JJ.