| Matter of Reese v Daines |
| 2009 NY Slip Op 03569 [62 AD3d 1254] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Ellen Reese et al., Respondents, v Richard F.Daines, Commissioner of Health of State of New York, Respondent, and Board of Trustees of"Unified Governance Structure" Joining Erie County Medical Center and Kaleida HealthSystems et al., Appellants. |
—[*1] Peter A. Reese, Buffalo, for petitioners-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Patrick H.NeMoyer, J.), entered September 15, 2008 in a proceeding pursuant to CPLR article 78. Thejudgment, insofar as appealed from, granted the petition in part.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the award of attorneys' fees and costs and as modified the judgment is affirmedwithout costs.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, tocompel respondents to comply with the provisions of the Open Meetings Law ([OML] PublicOfficers Law art 7) and the Freedom of Information Law ([FOIL] Public Officers Law art 6).Contrary to the contention of respondents-appellants (hereafter, respondents), Supreme Courtproperly determined that they are public bodies within the meaning of the OML and thus aresubject thereto. "[A] realistic appraisal of [the] functional relationship [of respondents] toaffected parties and constituencies" establishes that respondent Western New York HealthSystem, Inc. (WNYHS) performs a quintessentially governmental function, as did respondentBoard of Trustees before it, by overseeing the merger and consolidation of services of the ErieCounty Medical Center Corporation (ECMCC), a public benefit corporation, with a privatelyowned entity (Matter of Smith v City Univ. of N.Y., 92 NY2d 707, 713 [1999], reargdenied 93 NY2d 889 [1999]; seeMatter of Perez v City Univ. of N.Y., 5 NY3d 522, 528-529 [2005]). Indeed, the recordestablishes that WNYHS has final decision-making authority to carry out that function, includingcontrol of the public funding received by ECMCC (see Matter of Holden v Board of Trusteesof [*2]Cornell Univ., 80 AD2d 378, 380-381 [1981]). Thus,respondents cannot be deemed to be mere advisory bodies exempt from the OML's requirements(see Smith, 92 NY2d at 713; see generally Matter of Syracuse United Neighbors vCity of Syracuse, 80 AD2d 984, 984-985 [1981]). We further conclude that the courtproperly determined that WNYHS will be considered a public body subject to the OML'srequirements until the merger of ECMCC and the privately owned "Kaleida hospitals" iscompleted and ECMCC is no longer a public benefit corporation. Further, as respondentscorrectly concede, it necessarily follows that they are also public agencies for the purposes ofFOIL (see Public Officers Law § 86 [3]; see generally Matter of Wm. J. Kline& Sons v County of Hamilton, 235 AD2d 44, 45-46 [1997]).
We agree with respondents, however, that the court abused its discretion in awardingattorneys' fees and costs pursuant to the OML and FOIL, and we therefore modify the judgmentaccordingly. Respondents did not engage in "a persistent pattern of deliberate violations of the[OML]" (Matter of Goetschius v Board of Educ. of Greenburgh Eleven Union Free SchoolDist., 244 AD2d 552, 554 [1997]; see also Public Officers Law § 107 [2];Matter of Gordon v Village of Monticello, 87 NY2d 124, 128 [1995]; Matter ofCanandaigua Messenger v Wharmby, 292 AD2d 835 [2002]), and they had a "reasonablebasis for denying access" to the documents requested pursuant to FOIL (Public Officers Law§ 89 [4] [c] [i]; see Canandaigua Messenger, 292 AD2d 835 [2002]).Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ. [See 20 Misc 3d1145(A), 2008 NY Slip Op 51879(U) (2008).]