Opinion
January 26, 1976
In an action inter alia to declare that chapter 871 of the Laws of 1975 is unconstitutional as it affects the plaintiff and its members, the parties appeal from an order of the Supreme Court, Westchester County, dated December 31, 1975, as follows: (1) plaintiff from so much of the order as denied its motion for a preliminary injunction restraining the defendant city from dismissing its school crossing guards and (2) defendants (by separate notices of appeal) from the balance of the order, which denied a cross motion to dismiss the complaint for legal insufficiency. Order modified, on the law, by deleting therefrom the provision which denies the cross motion and substituting therefor a provision that the cross motion is granted to the extent of declaring (1) that chapter 871 of the Laws of 1975 is not unconstitutional as it affects the plaintiff and its members and (2) that the collective bargaining agreement in question contains no enforceable provision which bars the dismissal of employees as the result of economic necessity. As so modified, order affirmed, without costs. Assuming, for the sake of argument, that the collective bargaining agreement between the city and the union, which covers the period July 1, 1973 to August 31, 1976, does purport to prohibit the abolition of job positions on economic grounds, such provision would still not bar the public employer from dismissing the crossing guards under the exigent circumstances at bar (see Matter of Board of Educ. v Yonkers Federation of Teachers, 51 A.D.2d 568; Matter of Schwab v Bowen, 51 A.D.2d 574). Martuscello, Acting P.J., Cohalan, Margett, Damiani and Rabin, JJ., concur.