Incorporated Village of Hempstead v. Public Employment Relations Bd.

• Decision Date: 02 June 1988
• Citation: 137 A.D.2d 378,529 N.Y.S.2d 219
• Parties: In the Matter of INCORPORATED VILLAGE OF HEMPSTEAD, Respondent, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Appellant, and Hempstead Police Benevolent Association, Intervenor-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 219

529 N.Y.S.2d 219

137 A.D.2d 378

In the Matter of INCORPORATED VILLAGE OF HEMPSTEAD, Respondent, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Appellant and Hempstead Police Benevolent Association, Intervenor-Appellant.

Supreme Court, Appellate Division Third Department.

June 2, 1988.

Cullen & Dykman (Thomas B. Wassel, Gerard Fishberg and Nicholas C. Ferrara, of counsel), Garden City, for respondent.

Martin L. Barr (Jerome Thier, of counsel), Albany, for appellant.

Axelrod, Cornachio & Famighetti (Wayne Schaefer and Michael C. Axelrod, of counsel), Mineola, for intervenor-appellant.

Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

In May 1985, petitioner preferred disciplinary charges against one of its police officers. Thereafter, in June 1985, petitioner's Board of Trustees (hereinafter the Board), acting pursuant to its authority under Civil Service Law § 75 (2), appointed a hearing officer to hear the case. This prompted the Hempstead Police Benevolent Association (hereinafter PBA) to file an improper practice charge with respondent alleging that petitioner violated Civil Service Law § 209-a (1) (d) by unilaterally changing disciplinary procedures. Specifically, the PBA alleged that petitioner's appointment of a hearing officer was in derogation of an established past practice under which the Board had itself conducted the hearings in all disciplinary cases. The Administrative Law Judge (hereinafter ALJ) sustained the charge following a hearing in which the parties stipulated to the facts in the record. In its review of the ALJ's decision, respondent concluded that if there was a past practice of not appointing hearing officers in disciplinary cases, then petitioner could not depart from such a practice without negotiation. Respondent, however, found that the stipulation of facts was unclear as to whether a past practice actually existed and it remanded the matter to the ALJ to take further evidence on this issue.

Petitioner then commenced this CPLR article 78 proceeding to review respondent's determination. Respondent moved to dismiss the proceeding on the ground that it was premature. Supreme Court refused to dismiss the proceeding and, at the same time, granted the PBA leave to intervene. Thereafter, Supreme Court granted petitioner's application to annul respondent's decision, concluding that, in the absence of modification under the collective bargaining agreement in effect, Civil Service Law § 75 (2) gave petitioner absolute discretion to choose the appropriate hearing procedure. The PBA and respondent appeal.

On appeal respondent contends that the proceeding should have been dismissed since there has been no final administrative determination. We agree. Judicial review was initiated here prior to the resolution of the ultimate issue raised by the charge, i.e., whether petitioner was guilty of an improper employer practice based on its unilateral departure from an alleged past practice of holding disciplinary hearings before the Board. The determination challenged in the instant proceeding was limited to a ruling that if such a past practice is established in a future hearing, petitioner was not free to change it without negotiation. In our view, this represents a classic nonfinal order which is not reviewable under CPLR 7801 (1) (see, Matter of Martin v. Ambach, 85 A.D.2d 869, 870-871, 446 N.Y.S.2d 468, affd. 57 N.Y.2d 1001, 457 N.Y.S.2d 478, 443 N.E.2d 953; see also, Siegel, NY Prac § 558, at 779).

Where, as here, the present litigation would be rendered academic by a final determination that no past practice existed, policy favors dismissal of a CPLR article 78 proceeding as premature ( see, Matter of Samuel v. Ortiz, 105 A.D.2d 624, 626, 481 N.Y.S.2d 355). Moreover, the ruling challenged by petitioner has no coercive impact whatsoever. Petitioner's only burden at this time is to proceed with a hearing to determine the relevant factual issues. The absence of any substantial impact on petitioner militates against CPLR article 78 review at this stage ( see, Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853; Matter of Carville v. Allen, 13 A.D.2d 866, 867, 214 N.Y.S.2d 985).

Petitioner, nonetheless, contends that the matter is ripe for review, citing Civil Service Law § 213 (a), which provides that:

Orders of [respondent] * * * shall be deemed to be final against all parties * * * unless reversed or modified in proceedings for enforcement or judicial review * * *. Such orders shall be * * * reviewable under article seventy-eight of the civil practice law and rules upon petition filed * * * within thirty days after service * * * of a copy of such order * * *.

Although the language of this provision would superficially appear to dictate that every order of respondent be deemed a final order for purposes of CPLR article 78 review ¹, in our view, there is nothing to indicate that this statute was intended to modify the finality requirement contained in CPLR 7801 (1). The legislative history of the amendment which created Civil Service Law § 213 in its present form (L.1971, ch. 503, § 13) evidences that it was intended to put the onus on the nonprevailing party in a dispute brought before respondent to promptly challenge the merits of respondent's determination by commencing a CPLR article 78 proceeding within 30 days, or else be foreclosed from challenging the merits of the order in a subsequent enforcement proceeding ² (see, Governor's Bill Jacket, L.1971, ch. 503, Report of Division of the Budget, June 16, 1971; Memorandum of New York State School Boards Association, June 4, 1971; Memorandum of the Association of Towns of the State of New York, June 4, 1971; Memorandum of County Officers Association of the State of New York, May 28, 1971; see also, Matter of New York State Pub. Employment Relations Bd. v. Board of Educ. of City of Buffalo, 39 N.Y.2d 86, 90-91, 382 N.Y.S.2d 965, 346 N.E.2d 803). Moreover, nothing in the bill jacket indicates that Civil Service Law § 213 was intended to permit review of intermediate orders of respondent, akin to the Appellate Division's power to review nonfinal orders in civil actions (see, CPLR 5701 [a] [2] ). This type of change should not be lightly inferred as it would be totally disruptive of orderly and expeditious administrative functions to permit challenges as of right to all interlocutory orders of respondent (see, McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C 7801:8, at 37).

In our view, the case of Matter of State of New York (Insurance Dept. Liquidation Bur.) v. Public Employment Relations Bd., 68 N.Y.2d 695, 506 N.Y.S.2d 305, 497 N.E.2d 672, revg. on dissenting mem. below 114 A.D.2d 734, 736, 494 N.Y.S.2d 514, relied on by petitioner, does not dictate a contrary result. That case involved an appeal from a decision of respondent which found the petitioner to be a public employer for purposes of a representation proceeding under Civil Service Law § 207. A CPLR article 78 proceeding was commenced challenging respondent's decision, which was ultimately held to be reviewable as a final administrative determination. The reviewability of respondent's decision in that case was supported by the fact that the determination to be reviewed, the petitioner's status as a public employer, had been finally resolved and would not be mooted by further administrative proceedings. In addition, the decision had a significant impact on the petitioner, who was at that point impelled to " 'incur the time and expense required in the certification process * * * which would not be required if the [employer] is subsequently deemed to be a non-public employer' " ( Matter of State of New York [Insurance Dept. Liquidation Bur.] v. Public Employment Relations Bd., 114 A.D.2d 734, 736, 494 N.Y.S.2d 514 [dissenting mem], revd. on dissenting mem below 68 N.Y.2d 695, 506...