Police Benevolent Ass'n of New York State Troopers, Inc. v. New York State Div. Of State Police

• Decision Date: 24 May 2007
• Docket Number: 501708.
• Parties: POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC., et al., Appellants, v. NEW YORK STATE DIVISION OF STATE POLICE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 1350

838 N.Y.S.2d 199

2007 NY Slip Op 04394

POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC., et al., Appellants, v. NEW YORK STATE DIVISION OF STATE POLICE et al., Respondents.

501708.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided May 24, 2007.

Appeal from an order of the Supreme Court (Teresi, J.), entered February 14, 2006, in Albany County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.

CARPINELLO, J.

For over 25 years, the Internal Affairs Bureau of defendant New York State Division of State Police (hereinafter the State Police) has followed an unwritten policy of requiring members to authorize disclosure of confidential medical records when events raise questions as to the member's integrity or fitness to serve. In particular, during the course of administrative investigations stemming from both on and off-duty conduct, a member may be requested to execute a release form granting the State Police access to his or her medical records or be subject to disciplinary action. According to the Chief Inspector of the Internal Affairs Bureau of the State Police, the type of medical information sought is commensurate with the degree of concern raised by the member's conduct and all medical records obtained are held in the strictest confidence and protected against disclosure. The record before us contains facts pertaining to two situations where this policy was applied.

In November 2003, plaintiff Michael J. Tully, then a Sergeant with the State Police, was violently demanding entrance into the home of his ex-wife, prompting a 911 call by her for assistance. When local police arrived on the scene, Tully refused their requests to leave, threatened to bring the situation to a "head," "one way or another," and was adamant that they would have to arrest him to get him to leave. He was physically removed from the property and immediately transported to a local hospital for a psychiatric evaluation. In a separate incident one month later, plaintiff Randal Skrypek, then a Trooper with the State Police, made a series of 911 calls first claiming to be lost and then claiming to have been assaulted. This prompted an extensive manhunt. Skrypek was finally found injured in his vehicle and was transported to a local hospital. It was ultimately determined, however, that his claims were false and his injuries self-inflicted.

The Internal Affairs Bureau of the State Police commenced administrative investigations into each of these incidents. In the course of same, Tully and Skrypek were requested to execute written releases authorizing the State Police to obtain the medical records pertaining to these incidents. Both initially refused but eventually complied, albeit under protest. Ultimately, charges of misconduct were brought against both stemming from these incidents and separate hearings conducted. On March 22, 2004, defendant Wayne E. Bennett, Superintendent of the State Police, adopted the findings of a Hearing Board and dismissed Tully. Thereafter, on January 19, 2005, Bennett adopted the findings of another Hearing Board and dismissed Skrypek.¹ Neither Tully nor Skrypek, however, challenged their respective dismissals in a CPLR article 78 proceeding.

In between Tully's dismissal and Skrypek's dismissal, the instant declaratory judgment action was commenced by plaintiff Police Benevolent Association of the New York State Troopers, Inc. (hereinafter PBA), as well as Tully and Skrypek individually, challenging the constitutionality and legality of the State Police's unwritten policy of mandating members to sign releases disclosing their confidential medical information or be subject to disciplinary action. In particular, the complaint sought a declaration of the illegality of the State Police's "continued" implementation of the unwritten policy and the release form itself. At issue is an order of Supreme Court granting defendants summary judgment.

We agree with defendants' contention that the PBA's facial attack on this unwritten policy is not justiciable.² "The `justiciable controversy' upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs" (American Ins. Assn. v Chu, 64 NY2d 379, 383 [1985], appeal dismissed and cert denied 474 US 803 [1985] [internal quotation marks omitted]; see New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]). Here, the PBA does no more than raise concerns over the potentially broad and arbitrary manner in which the State Police could theoretically apply this unwritten policy, and such concerns are wholly speculative (see Schultz v City of Port Jervis, 242 AD2d 699, 700 [1997]; Cherry v Koch, 126 AD2d 346, 351-352 [1987], lv denied 70 NY2d 603 [1987]; see generally New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 214 [2004]; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 521-522 [1986], cert denied 479 US 985 [1986]; Matter of Le Grand v Goord, 272 AD2d 650 [2000]; cf. Police Benevolent Assn. of N.Y. State Troopers, Inc. v Division of N.Y. State Police, 29 AD3d 68, 70 [2006])...