May 21, 2019

Under certain circumstances a court may order the New York State Public Employment Relations Board to issue determinations on pending improper practice charges


Petitioner in the Article 78 action had filed two improper practice charges with the Public Employment Relations Board [PERB] in 2014. Contending that PERB had yet to issues its determinations concerning these charges, in 2018 Petitioner initiated a CPLR Article 78 proceeding, seeking a court order compelling PERB to issue determinations on these two improper practice charges then pending before it, naming PERB and the State of New York [State] as respondents,.

In lieu of filing an answer to Petitioner's complaint, PERB moved to dismiss the petition for, among other reasons, Petitioner's alleged failure to exhaust administrative remedies. State, in lieu of filing an answer to Petitioner's complaint, separately moved to dismiss the petition with respect to it, alleging that it "was not a proper party to the proceeding."

The Supreme Court [1] granted the State's motion to dismiss it from the proceedings on the ground that it was not a proper party to the proceeding; [2] denied PERB's motion to dismiss the action on the grounds that petitioner "had failed to exhaust" administrative remedies; and [3] granted Petitioner's petition on the merits, directing PERB to issue determinations on Petitioner's improper practice charges within 60 days of the serving of the court's order, with notice of entry, on PERB.

PERB appealed the Supreme Court's ruling to the Appellate Division, thereby "invoking an automatic stay of Supreme Court's judgment."*

While the appeal was pending in the Appellate Division, however, PERB issued it's decisions on Petitioner's improper practice charges, thus providing Petitioner with all of the relief that he requested in his CPLR petition. 

The Appellate Division, observing that "the rights of the parties would not be affected by a determination" of PERB's appeal"on the merits," rejected PERB's contention that exceptions** to the mootness doctrine applied in this action. The court explained that the controversy presented by this case "evaded its review solely because PERB issued the requested determination during the pendency of the appeal."

Holding that the controversy between Petitioner and PERB had been resolved as the result of PERB's issuing the determinations demanded by Petitioner, the Appellate Division dismissed PERB's appeal as moot.

* See CPLR §5519[a][1], which, in pertinent part, provides for a stay of the enforcement of a court decision without a court order upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal where "the appellant or moving party is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state."

** Claims of exception to the mootness doctrine typically require the court to consider three issues: [a] is the question presented of a substantial public nature; [b] is there is a need for an authoritative determination for the future guidance of public officers; and [3] is there a likelihood of future recurrence of the question [see Hearst Corp. v Clyne, 50 NY2d 707].

The decision is posted on the Internet at:


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