| Matter of City of New York v New York State Pub. Empl. RelationsBd. |
| 2008 NY Slip Op 06539 [54 AD3d 480] |
| August 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of City of New York, Appellant, v New York StatePublic Employment Relations Board et al., Respondents. |
—[*1] David P. Quinn, Public Employment Relations Board, Albany, for Public EmploymentRelations Board and another, respondents. Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), for Patrolmen'sBenevolent Association of the City of New York, Inc., respondent.
Stein, J. Appeal from a judgment of the Supreme Court (Zwack, J.), entered January 28,2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Public Employment Relations Boardfinding that a proposal submitted by respondent Patrolmen's Benevolent Association of the Cityof New York, Inc. was a mandatory subject of collective bargaining.
In July 2006, while petitioner and respondent Patrolmen's Benevolent Association of the Cityof New York (hereinafter PBA) were negotiating a collective bargaining agreement, petitionerfiled a declaration of impasse. Petitioner then filed a petition for arbitration and thereafter soughta declaratory ruling to determine which of PBA's proposals were mandatory subjects ofnegotiation. One of the proposals was for premium pay due to a lack of negotiable disciplinaryprocedural protections (hereinafter premium pay proposal). Petitioner and PBA stipulated tofacts, and an Administrative Law Judge (hereinafter ALJ) issued a recommended declaratoryruling and decision finding, among other things, that the premium pay proposal was a mandatorysubject of negotiation. Petitioner took exception to the ruling and respondent Public [*2]Employment Relations Board (hereinafter PERB) upheld the ALJ'sdetermination. Petitioner then commenced this CPLR article 78 proceeding seeking annulment ofPERB's determination. Supreme Court dismissed the petition and upheld PERB's determination,prompting this appeal.
During the pendency of this appeal, the arbitration panel issued an award, thereby finalizingthe negotiations for the July 2004 to July 2006 labor contract between petitioner and PBA. As aresult, all parties agree that this appeal is now moot. However, petitioner and PBA contend thatthis matter falls within the exception to the mootness doctrine. We disagree.
"It is a fundamental principle of our jurisprudence that the power of a court to declare the lawonly arises out of, and is limited to, determining the rights of persons which are actuallycontroverted in a particular case pending before the tribunal" (Matter of Hearst Corp. vClyne, 50 NY2d 707, 713 [1980] [citations omitted]). The mootness doctrine has been heldto be paramount unless and until an exception is established by demonstrating: "(1) a likelihoodof repetition, either between the parties or among other members of the public; (2) a phenomenontypically evading review; and (3) a showing of significant or important questions not previouslypassed on, i.e., substantial and novel issues" (id. at 714-715; see Matter of DailyNews v Teresi, 275 AD2d 812, 814 [2000]).
We find that there has been no demonstration that the issue raised here would typically evadereview. Petitioner and PBA have both taken the position that the renewal of PBA's premium payproposal in the next round of contract negotiations is all but inevitable. It is also conceivable thatsuch a proposal will be made in negotiations between other cities and their police benevolentassociations. If that proves to be the case, any negotiating party may seek a declaratory ruling ordeclaratory judgment when the proposal is first made, rather than waiting until the parties havereached an impasse and proceeded with arbitration, so as to obtain review before the arbitrationprocess is complete (see 4 NYCRR 210.1). Since petitioner has failed to demonstrate thatthis case falls within the exception to the mootness doctrine, the appeal must be dismissed (see Matter of NRG Energy, Inc. vCrotty, 18 AD3d 916, 920 [2005]).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the appeal isdismissed, as moot, without costs.