IN RE: Ellen REESE (2009)

 Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondents to comply with the provisions of the Open Meetings Law ( [OML] Public Officers 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 Court properly determined that they are public bodies within the meaning of the OML and thus are subject thereto.  “[A] realistic appraisal of [the] functional relationship [of respondents] to affected parties and constituencies” establishes that respondent Western New York Health System, Inc. (WNYHS) performs a quintessentially governmental function, as did respondent Board of Trustees before it, by overseeing the merger and consolidation of services of the Erie County Medical Center Corporation (ECMCC), a public benefit corporation, with a privately owned entity (Matter of Smith v. City Univ. of N.Y., 92 N.Y.2d 707, 713, 685 N.Y.S.2d 910, 708 N.E.2d 983, rearg.denied 93 N.Y.2d 889, 689 N.Y.S.2d 431, 711 N.E.2d 645;  see Matter of Perez v. City Univ. of N.Y., 5 N.Y.3d 522, 528-529, 806 N.Y.S.2d 460, 840 N.E.2d 572).   Indeed, the record establishes that WNYHS has final decision-making authority to carry out that function, including control of the public funding received by ECMCC (see Matter of Holden v. Board of Trustees of Cornell Univ., 80 A.D.2d 378, 380-381, 440 N.Y.S.2d 58).   Thus, respondents cannot be deemed to be mere advisory bodies exempt from the OML's requirements (see Smith, 92 N.Y.2d at 713, 685 N.Y.S.2d 910, 708 N.E.2d 983;  see generally Matter of Syracuse United Neighbors v. City of Syracuse, 80 A.D.2d 984, 984-985, 437 N.Y.S.2d 466).   We further conclude that the court properly determined that WNYHS will be considered a public body subject to the OML's requirements until the merger of ECMCC and the privately owned “Kaleida hospitals” is completed and ECMCC is no longer a public benefit corporation.   Further, as respondents correctly concede, it necessarily follows that they are also public agencies for the purposes of FOIL (see Public Officers Law § 86[3];  see generally Matter of Wm. J. Kline & Sons v. County of Hamilton, 235 A.D.2d 44, 45-46, 663 N.Y.S.2d 339).

 We agree with respondents, however, that the court abused its discretion in awarding attorneys' fees and costs pursuant to the OML and FOIL, and we therefore modify the judgment accordingly.   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 School Dist., 244 A.D.2d 552, 554, 664 N.Y.S.2d 811;  see also Public Officers Law § 107[2];  Matter of Gordon v. Village of Monticello, 87 N.Y.2d 124, 128, 637 N.Y.S.2d 961, 661 N.E.2d 691;  Matter of Canandaigua Messenger v. Wharmby, 292 A.D.2d 835, 739 N.Y.S.2d 508), and they had a “reasonable basis for denying access” to the documents requested pursuant to FOIL (§ 89[4][c][i];  see Canandaigua Messenger, 292 A.D.2d 835, 739 N.Y.S.2d 508).

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the award of attorneys' fees and costs and as modified the judgment is affirmed without costs.

MEMORANDUM: