| Matter of Civil Serv. Empls. Assn. v New York State Pub. Empl.Relations Bd. |
| 2007 NY Slip Op 09833 [46 AD3d 1037] |
| December 13, 2007 |
| Appellate Division, Third Department |
| In the Matter of Civil Service Employees Association, Appellant, vNew York State Public Employment Relations Board, Respondent, and New York State Officeof Mental Retardation and Developmental Disabilities, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), for NewYork State Office of Mental Retardation and Developmental Disabilities, appellant Sandra M. Nathan, New York State Public Employment Relations Board, Albany (David P.Quinn of counsel), for respondent. William P. Seamon, Public Employees Federation, Albany (Lisa M. King of counsel), forPublic Employees Federation, amicus curiae.
Crew III, J. Appeal from a judgment of the Supreme Court (Lynch, J.), entered September27, 2006 in Albany County, which dismissed petitioner's application and the cross application ofrespondent Office of Mental Retardation and Developmental Disabilities, in a proceedingpursuant to CPLR article 78, to review a determination of respondent Public EmploymentRelations Board finding, among other things, that an arbitrator could have in camera access tocertain quality review investigation records.[*2]
As the result of certain alleged misconduct of twoemployees of respondent Office of Mental Retardation and Developmental Disabilities(hereinafter OMRDD), a quality assurance investigation was initiated to determine whatcorrective measures should be undertaken. Based upon that investigation, it was determined thatthe employees should be terminated. The matter ultimately was submitted to arbitration wherepetitioner sought copies of the quality review investigation file in order to prepare a defense forthe employees. OMRDD refused to provide copies of the file, prompting the filing of animproper practice charge with respondent Public Employment Relations Board (hereinafterPERB). Ultimately, PERB determined that the arbitrator should review the records in camera todetermine what, if any, information should be given to petitioner. Neither party being satisfiedwith that determination, petitioner commenced this CPLR article 78 proceeding and OMRDDcross-petitioned seeking judicial review. Supreme Court dismissed the petition and cross petition,and this appeal ensued.
OMRDD argues that the information sought by petitioner is exempt from Education Law§ 6527 (3), which provides that: "Neither the proceedings nor the records relating toperformance of a medical or a quality assurance review function . . . , including theinvestigation of an incident reported pursuant to section 29.29 of the mental hygiene law, shall besubject to disclosure under article thirty-one of the civil practice law and rules except ashereinafter provided or as provided by any other provision of law." We previously had occasionto rule on precisely this issue. In Matterof Mental Hygiene Legal Serv. v Maul (36 AD3d 1133 [2007], lv denied 8NY3d 812 [2007]), we held that where, as here, the request for documents was not made underthe authority of CPLR article 31 but, rather, in furtherance of the petitioner's obligation toinvestigate allegations of abuse or mistreatment, the statutory prohibition was inapplicable. Here,the request was made in furtherance of petitioner's obligation to effectively defend its members inan administrative disciplinary proceeding, and the prohibition is equally inapplicable.
Finally, we have no quarrel with the remedy fashioned by PERB. While PERB previouslyhas held that employers are obligated to provide relevant information to a union investigating agrievance, PERB likewise recognized the need for confidentiality of the information assimilatedin the course of a quality assurance review. Given these competing imperatives, we cannot saythe PERB's remedy was either arbitrary or capricious.
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment isaffirmed, without costs.