NEW YORK STATE SUPREME COURT

WESTCHESTER COUNTY
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POLICE ASSOCIATION OF THE CITY OF
M O U N T V E R N O N ; a n d N IC HOLA S
MASTROGIORGIO, SUMMONS
Index No. 63103/2023
Plaintiffs, Venue is based on NY CPLR § 509.
Jury Trial Demanded.
-- against --

CITY OF MOUNT VERNON DEPARTMENT OF

FINANCE; and DR. DARREN M. MORTON as the
City of Mount Vernon Comptroller,

Defendants.
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TO THE FOLLOWING DEFENDANTS:

CITY OF MOUNT VERNON DEPARTMENT OF FINANCE

and DR. DARREN M. MORTON, Comptroller
1 Roosevelt Square
Mount Vernon, NY 10550

YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a
copy of your answer within 20 days after the service of this Summons, exclusive of the day of
service, or within 30 days after the service is complete if this Summons is not personally delivered
to you within the state of New York. In case of your failure to appear or answer, judgment will be
taken against you by default for the relief demanded in the Complaint.

Dated: June 29, 2023

New York, NY
Yours, etc.,
ISAACS DEVASIA CASTRO &
WIEN, LLP

By:
Liam L. Castro, Esq.
Steve Isaacs, Esq.
Attorneys for Plaintiffs
80 Broad Street, 5th Floor
New York, NY 10004
Tel. (917) 551-1300
LCastro@idcwlaw.com
SIsaacs@idcwlaw.com
Notice: the nature of this action is based on Mount Vernon Charter §§ 91-b, 96 and
98.

The relief sought is: the Court: (1) find the Defendants failed to, and order them to forthwith
comply with Mount Vernon Charter §§ 91-b, 96 and 98; (2) because of the
many years-long delay in complying with these provisions, order the
Defendants pay interest at the maximum level permitted under law on the
financial increases that Plaintiffs negotiate or that the panel requires the city
of Mount Vernon to institute in their successor CBA; and (3) grant other such
declaratory and injunctive relief as it deems just and proper.

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NEW YORK STATE SUPREME COURT
WESTCHESTER COUNTY
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POLICE ASSOCIATION OF THE CITY OF
M O U N T V E R N O N ; a n d N IC HOLA S
MASTROGIORGIO, COMPLAINT
Index No. 63103/2023
Plaintiffs,

-- against --

CITY OF MOUNT VERNON DEPARTMENT OF

FINANCE; and DR. DARREN M. MORTON as the
City of Mount Vernon Comptroller,

Defendants.
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The POLICE ASSOCIATION OF THE CITY OF MOUNT VERNON (“PBA”) and

NICHOLAS MASTROGIORGIO (“Mastrogiorgio”) (collectively, “Plaintiffs”), by their attorneys,

Isaacs Devasia Castro & Wien, LLP, complaining of the CITY OF MOUNT VERNON

DEPARTMENT OF FINANCE (“Department”) and DR. DARREN M. MORTON as the City of

Mount Vernon Comptroller (“Comptroller”) (collectively, “Defendants”), respectfully allege the

truth of the following except as to those allegations made on information and belief, and as to those

the Plaintiffs believe them to be true:

JURISDICTION

1. Jurisdiction in this action is proper pursuant to NY CPLR § 301.

VENUE

2. The venue of this action is proper pursuant to NY CPLR § 509 as this action is

brought in the county Plaintiffs designated, and where the events, omissions, and causes of action

giving rise to the claims arose.

 PARTIES

3. The PBA is the duly certified and exclusive collective bargaining representative of

city of Mount Vernon (“City”) employees within the civil service title of police officer and all other

uniformed officers below the rank of Deputy Chief in the Mount Vernon Police Department (“PD”).

The PBA also is and was at all times relevant to this Complaint an “employee organization” within

the meaning of NY CIV. SERV. L. § 201(5).

4. The PBA is the labor representative responsible for negotiating and enforcing terms

and conditions of employment, including, but not limited to, pay and other financial benefits for its

members. The PBA represents the interest of itself and all other of its members who have been

adversely affected by the Defendants’ actions as described below.

5. Mastrogiorgio is the duly elected president of the PBA, and also holds the civil

service title of lieutenant in the PD. He is also a resident of Mount Vernon.

6. The Department was established and is governed by the Mount Vernon Charter

Article VIII. In sum, it is responsible for: (1) the billing and collection of all funds owed the City;

(2) investment and management of the City's surplus cash and funds held in trust; (3) allocation of

available funds and monitoring of City expenditures through the budget process; (4) disbursement

of funds for services and goods rendered to the City; (5) accounting for and reporting of all funds1;

(6) debt management, including policy development, issuance and servicing; and (7) advising City

agencies on risk management issues and in certain cases, obtaining and monitoring insurance

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The Defendants publically list these duties as ones for which they are responsible, under
the Mount Vernon Charter. In particular, item number six they have proclaimed to have the duty
to perform, which is consistent with the Charter, as explained below. As explained below, and
inexplicitly, they have for many years failed to perform a duty which they publically
acknowledge they have.

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policies; and overseeing Annual Budget appropriations.

7. According to the Mount Vernon Charter § 90, the Comptroller is the head of the

Department, and has the responsibilities defined therein.

FACTS

8. The PBA and City are parties to a Collective Bargaining Agreement (“CBA”) which

governs the terms and conditions of PBA members’ employment. Among other things, it details

PBA member’s rights to health insurance, holiday pay, certain paid leaves of absences, meal periods,

out of title or grade pay, overtime, pensions, wages, stipends, uniform allowance, and other rights

and obligations.

9 The term of the most recent CBA was from January 1, 2014, through December 31,

2017, and that CBA is now expired.

10. Under what is called the “Triborough Doctrine”, and pursuant to NY CIV. SERV. L.

§ 209-a.1(e), absent some exceptions not relevant here, the City is obligated to continue all the terms

of an expired CBA until a new CBA is negotiated.

11. Thus, the terms of the 2014-2017 CBA remain in effect.

12. Since early 2021 the parties have engaged in on-again, off-again negotiations for a

successor CBA. At times, they met to negotiate and submitted CBA proposals. Most of the time,

and for several years now, they informed the Plaintiffs that they had no idea what monies they have

coming in or going out, or used words to that effect, so they cannot meaningfully negotiate with the

PBA.

13. In fact, in November 2021, the PBA filed with the Public Employment Relations

Board (“PERB”) a charge that the City entirely refused to negotiate a successor CBA, in part for that

3
reason.

14. It was only because of that proceeding, the City met with the PBA three times.

Essentially the City was forced to meet with the PBA because of the PERB charge.

15. At the first negotiation, on November 30, 2021, the City repeated what they told the

PBA earlier; they have no idea about their finances and do not have labor counsel. They were a

financial rudder-less ship sitting on their hands.

16. The PBA understood a new comptroller was going to be installed on January 1, 2022,

so the PBA implored the City to do two very easy things: (1) respond to its proposal which it sent

to them many months earlier; and (2) to discuss at least non-economic items the next time. If they

had no idea what monies they had in the bank, at least they could negotiate non-economic items.

17. The second negotiation was cancelled at the City’s request just days before it was

scheduled. The second date was rescheduled for February 15, 2022, at which the City was as

prepared to negotiate as they were in November, even though there are non-economic items to

discuss and the new controller was in office for six weeks.

18. The third date was on about February 17, 2022, at which the City was again as

prepared as they were before. Everything was left unresolved.

19. In February 2022, the PBA declared with PERB an impasse in negotiations, the result

of which was the appointment of a mediator, Lori Matales.

20. The parties and mediator met about six times with no result.

21. Accordingly, in December 2022, the PBA filed with PERB a petition seeking binding

interest arbitration pursuant to pursuant to section 205, et seq. of PERB’s Rules of Procedure (4

NYCRR Ch. VII).

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 22. As a result, arbitrator Howard Edelman was selected as neutral arbitrator in a panel

of three members; the two others are selected by the City and PBA, respectively.

23. At binding interest arbitration, to make a determination as to terms and condition

of employment, including and especially wages and other financial terms, the panel must consider

“the interests and welfare of the public and the financial ability of the public employer to pay” under

NY CIV. SERV. L. § 209(4)(c)(v)(b).

24. At arbitration, generally, a police benevolent association presents on that issue an

economist to testify as to the employer’s financial health. An employer also presents their witness

on that issue, as well. Both will be true in the interest arbitration between the PBA and City. If the

PBA here wants wages increases, of course they have to show the City can afford it. If the City

wants to give no wages, it has to show it has no money.

25. In order for the PBA to prepare for its presentation to the interest arbitration panel,

it relies on the financial records for the years in question; here it is 2018 through even as recent as

present day, though the panel may only issue an award for a two-year period.

26. There is no more important a City’s financial record than three kinds of documents.

First, the City’s annual financial quarterly report which details the City' s year-to-date and projected

financial condition, as of March 31, June 30, September 30, and December 31 of each fiscal year for

all City departments and agencies.

27. Second, an annual financial statement which details the City’s full annual fiscal

financial condition.

28. Third, an independent financial fiscal year audit of the City’s financial condition.

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 COUNT I

29. Plaintiffs repeat and re-allege the allegations contained above.

30. Under Mount Vernon Charter § 91-b, the Comptroller shall issue quarterly reports

to the Mayor and the City Council concerning the City's year-to-date and projected financial

condition, as of March 31, June 30, September 30, and December 31 of each fiscal year for all City

departments and agencies. Quarterly reporting requirements shall also include the Board of Water

Supply, the Urban Renewal Agency, and the Industrial Development Agency which are covered

under this provision subject to their independent reporting requirements. Quarterly financial reports

shall be made available for public inspection within 15 days after completion.

31. Upon information and belief, the Defendants have not performed this quarterly report

in about the last two years.

32. Plaintiffs, as a labor organization and members of the public, have been harmed by

this failure because of their inability to assess and present at binding interest arbitration the City’s

ability to pay for wage increases and other financial benefits for its members. In other words, they

have no data, which the Defendants are required to have prepared, to meet its obligation at binding

interest arbitration. Without this data, the Plaintiffs cannot meaningfully proceed to binding interest

arbitration; they are stuck because the Defendants have not complied with their statutory obligation

as detailed in this Count.

33. Further, Mount Vernon Charter § 91-b also requires that the records produced by the

Defendants be made available to the public. Mastrogorgio is a member of the public, a tax payer and

resident of Mount Vernon, and therefore has been deprived of the records required by this section.

34. As a result, the Defendants violated Mount Vernon Charter § 91-b.

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 COUNT II

35. Plaintiffs repeat and re-allege the allegations contained above.

36. Under Mount Vernon Charter § 96, the Comptroller shall, within 90 days after the

close of each fiscal year, prepare and publish in book or pamphlet form a full and accurate statement

in detail of the financial condition of the City in the form and manner prescribed by the State

Comptroller.

37. Upon information and belief, the Defendants have not performed this annual

financial statement since about 2018.

38. Plaintiffs, as a labor organization and member of the public, have been harmed by

this failure because of their inability to assess and present at binding interest arbitration the City’s

ability to pay for wage increases and other financial benefits for its members. In other words, they

have no data, which the Defendants are required to have prepared, to meet its obligation at binding

interest arbitration. Without this data, the Plaintiffs cannot meaningfully proceed to binding interest

arbitration; they are stuck because the Defendants have not complied with their statutory obligation

as detailed in this Count.

39. Further, Mount Vernon Charter § 96 also requires that the records produced by the

Defendants be made available to the public. Mastrogorgio is a member of the public, a tax payer and

resident of Mount Vernon, and therefore has been deprived of the records required by this section.

40. As a result, the Defendants violated Mount Vernon Charter § 96.

COUNT III

41. Plaintiffs repeat and re-allege the allegations contained above.

42. Under Mount Vernon Charter § 98, the Comptroller shall ensure that an annual

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independent audit is performed.

43. This annual independent audit shall be made of City accounts and other evidences of

financial transactions of the City government, following the close of each fiscal year, and shall

include audits of any agencies of the City that may be necessary in order to complete the annual

independent audit. An independent firm or firms of certified public accountants shall be engaged

to conduct such annual audits, and such firm or firms of certified public accountants shall be selected

by the Board of Estimate.

44. Following the close of each fiscal year, the Comptroller and the Department of

Finance, and other departments, and City authorities and agencies as applicable, shall provide access

to all records and accounts required by such firm or firms of certified public accountants to perform

and complete such annual audits. Copies of the annual independent audit reports shall be submitted

to the City Council, the Mayor, and the Comptroller, and the final annual independent audit reports

shall be made accessible to the public.

45. Upon information and belief, the Defendants have not caused the independent audit

to be performed since about 2018.

46. Plaintiffs, as a labor organization and member of the public, have been harmed by

this failure because of their inability to assess and present at binding interest arbitration the City’s

ability to pay for wage increases and other financial benefits for its members. In other words, they

have no data, which the Defendants are required to have prepared, to meet its obligation at binding

interest arbitration. Without this data, the Plaintiffs cannot meaningfully proceed to binding interest

arbitration; they are stuck because the Defendants have not complied with their statutory obligation

as detailed in this Count.

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 47. Further, Mount Vernon Charter § 98 also requires that the records produced by the

Defendants be made available to the public. Mastrogorgio is a member of the public, a tax payer and

resident of Mount Vernon, and therefore has been deprived of the records required by this section.

48. As a result, the Defendants have violated Mount Vernon Charter § 98.

WHEREFORE, Plaintiffs respectfully request that this Court: (1) find the Defendants failed

to, and order them to forthwith comply with Mount Vernon Charter §§ 91-b, 96 and 98; (2) because

of the many years-long delay in complying with these provisions, order the Defendants pay interest

at the maximum level permitted under law on the financial increases that Plaintiffs negotiate or that

the panel requires the City to institute in their successor CBA; and (3) grant other such declaratory

and injunctive relief as it deems just and proper.

Dated: June 29, 2023

New York, NY

Respectfully submitted,
ISAACS DEVASIA CASTRO &
WIEN, LLP

By:
Liam L. Castro, Esq.
Steve Isaacs, Esq.
Attorneys for Plaintiffs
80 Broad Street, 5th Floor
New York, NY 10004
Tel: (917) 551-1300
LCastro@idcwlaw.com
SIsaacs@idcwlaw.com

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NEW YORK STATE SUPREME COURT
WESTCHESTER COUNTY

POLICE ASSOCIATION OF THE CITY OF

MOUNT VER NON; and NIC HOLAS
MASTROGIORGIO, Index No. 63103/2023

Plaintiffs,

-- against --

CITY OF MOUNT VERNON DEPARTMENT OF

FINANCE; and DR. DARREN M. MORTON as the
City of Mount Vernon Comptroller,

Defendants.

SUMMONS AND COMPLAINT

ISAACS DEVASIA CASTRO & WIEN, LLP

By: Liam L. Castro, Esq. and Steve Isaacs, Esq.
Attorneys for Plaintiffs
80 Broad Street, 5th Floor
New York, NY 10004
(917) 551-1300
LCastro@idcwlaw.com
SIsaacs@idcwlaw.com