IN RE: CITY OF YONKERS (2024)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Public Employment Relations Board dated January 13, 2022, which affirmed a decision of an administrative law judge dated November 16, 2021, dismissing, without a hearing, an improper practice charge filed by the City of Yonkers against the Yonkers Firefighters, Local 628, IAFF, AFL–CIO, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Robert A. Neary, J.), entered June 30, 2022.  The order and judgment granted the motion of the New York State Public Employment Relations Board pursuant to CPLR 7804(f) to dismiss the petition and, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The City of Yonkers commenced this proceeding pursuant to CPLR article 78 to review a determination of the New York State Public Employment Relations Board (hereinafter PERB) dated January 13, 2022, which affirmed a decision of an administrative law judge dated November 16, 2021, dismissing, without a hearing, an improper practice charge filed by the City against the Yonkers Firefighters, Local 628, IAFF, AFL–CIO (hereinafter the Union) in connection with an arbitration proceeding between the Union and the City regarding a procedure governing employee termination proceedings under Civil Service Law § 71.  In its improper practice charge, the City alleged, inter alia, that certain of the Union's proposals in the arbitration proceeding purportedly involved nonmandatory subjects of negotiation.  PERB moved pursuant to CPLR 7804(f) to dismiss the petition on the ground, among other things, that the administrative law judge correctly determined that the improper practice charge filed by the City was rendered academic by the issuance of an arbitration award on May 24, 2021, in the arbitration proceeding, which involved, inter alia, the subject of the improper practice charge.  The arbitration award is the subject of a related appeal decided herewith (see Matter of City of Yonkers v. Yonkers Fire Fighters, Local 628, IAFF, AFL–CIO, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 5150370 [decided herewith]).

In an order and judgment entered June 30, 2022, the Supreme Court granted PERB's motion and, in effect, denied the petition and dismissed the proceeding.  The City appeals.  We affirm.

On appeal, the scope of review is whether PERB's determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3];  Matter of Kent v. Lefkowitz, 27 N.Y.3d 499, 505, 35 N.Y.S.3d 278, 54 N.E.3d 1149;  Matter of Burke v. New York State Pub. Empl. Relations Bd., 221 A.D.3d 892, 893, 201 N.Y.S.3d 415), and “PERB is accorded deference in matters falling within its area of expertise,” which “includes the resolution of improper practice charges” (Matter of Kent v. Lefkowitz, 27 N.Y.3d at 505, 35 N.Y.S.3d 278, 54 N.E.3d 1149 [internal quotation marks omitted];  see Matter of Burke v. New York State Pub. Empl. Relations Bd., 221 A.D.3d at 893, 201 N.Y.S.3d 415).

Contrary to the City's contention, PERB's determination to affirm the administrative law judge's decision has a rational basis in the record and is not arbitrary and capricious (see CPLR 7803[3];  Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876;  Matter of Burke v. New York State Pub. Empl. Relations Bd., 221 A.D.3d at 893, 201 N.Y.S.3d 415).

Accordingly, the Supreme Court properly granted PERB's motion pursuant to CPLR 7804(f) to dismiss the petition and, in effect, denied the petition and dismissed the proceeding (see Matter of Burke v. New York State Pub. Empl. Relations Bd., 221 A.D.3d at 893–894, 201 N.Y.S.3d 415;  Matter of Weinman v. New York State Dept. of Motor Vehs. Traffic Violations Bur., 203 A.D.3d 1050, 1051, 162 N.Y.S.3d 767).

DUFFY, J.P., MILLER, WAN and LANDICINO, JJ., concur.