State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 24, 2016 520713 

________________________________

In the Matter of STATE OF 

NEW YORK,

Appellant,

v MEMORANDUM AND ORDER

PUBLIC EMPLOYMENT RELATIONS 

BOARD et al.,

Respondents.

________________________________

Calendar Date: January 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Michael N. Volforte, Governor's Office of Employee

Relations, Albany, for appellant.

David P. Quinn, Public Employment Relations Board, Albany,

for Public Employment Relations Board, respondent.

Lisa M. King, New York State Public Employees Federation,

AFL-CIO, Albany (Edward J. Aluck of counsel), for New York State

Public Employees Federation, AFL-CIO, respondent.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Collins, J.),

entered December 10, 2014 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondent Public

Employment Relations Board denying petitioner's request to

withdraw from a stipulation of settlement and vacate an interim

decision issued thereupon.
-2- 520713 

In 2010, respondent Public Employees Federation, AFL-CIO

(hereinafter PEF) – the collective bargaining representative of

those of petitioner's employees in the Professional, Scientific

and Technical Services bargaining unit (hereinafter PS&T unit) –

filed a petition with respondent Public Employment Relations

Board (hereinafter PERB) seeking to be certified as the

negotiating representative of roughly 2,000 unrepresented

positions and placement of those positions into the PS&T unit. 

In 2013, the Governor's Office of Employee Relations (hereinafter

GOER) and PEF notified PERB's Director of Public Employment

Practices and Representation (hereinafter the Director) that the

parties had reached a stipulation of settlement, namely, that PEF

had agreed to withdraw 11 similar representation petitions

pending before PERB and that petitioner had agreed to the

placement of 250 of the 2,000 unrepresented positions into the

PS&T unit. The parties expressly agreed that the employees in

the 250 positions, which were listed in an attached appendix,

were "not assigned to any duties that would bring them within the

definition of managerial and/or confidential under [Civil Service

Law] § 201.7 (a)" and that the individuals in those positions

"share[d] a general community of interest with other [s]tate

employees in the PS&T [u]nit."

In reliance upon the stipulation, the Director issued an

interim decision placing the subject positions in the PS&T unit. 

Shortly thereafter, GOER moved on behalf of petitioner to vacate

the stipulation and the interim decision on the basis that it had

failed to provide sufficient guidance to the impacted agencies to

allow them to make a determination as to whether the employees in

the subject positions served in a managerial or confidential

capacity and that, due to this failure, certain of the employees

were not, as represented in the stipulation, public employees

under the Taylor Law. The Director denied the motion, and

petitioner filed exceptions to both the interim decision and the

motion ruling. Upon review, PERB, among other things, denied

petitioner's exceptions and granted PEF's petition to the extent

of placing the 250 positions into the PS&T unit. Petitioner then

commenced this CPLR article 78 proceeding seeking review of

PERB's determination. Supreme Court confirmed the determination

and dismissed the petition, prompting this appeal.
-3- 520713 

We begin by acknowledging our limited scope of review in

matters involving PERB's interpretation of the Civil Service Law

(see Matter of Cold Spring Harbor Teachers Assn. v New York State

Pub. Empl. Relations Bd., 12 AD3d 442, 443 [2004]; Matter of

Suffolk County Legislature v Cuevas, 303 AD2d 415, 415 [2003]). 

"As the agency charged with implementing the fundamental policies

of the Taylor Law, [PERB] is presumed to have developed an

expertise and judgment that requires us to accept its

construction if not unreasonable" (Matter of Incorporated Vil. of

Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398,

404 [1979]; see Civil Service Law § 205 [5] [a]; Matter of

Suffolk County Legislature v Cuevas, 303 AD2d at 415). 

Accordingly, we will not disturb PERB's determination unless it

was affected by an error of law or was arbitrary and capricious

or an abuse of discretion (see Matter of Town of Islip v New York

State Pub. Empl. Relations Bd., 23 NY3d 482, 494 [2014]; Matter

of Superior Officers Assn. of Police Dept. of County of Nassau,

Inc. v State of N.Y. Pub. Empl. Relations Bd., 23 AD3d 481, 482

[2005], lv denied 6 NY3d 709 [2006]).

Petitioner argues that PERB's refusal to vacate the

stipulation and the interim decision was arbitrary and capricious

because the stipulation did not provide a sufficient factual

basis to determine whether placement of the 250 positions into

the PS&T unit was appropriate and because, in issuing the interim

decision, the Director relied on representations made in the

stipulation without conducting an independent investigation into

the appropriateness of the placement. We disagree. The Director

is charged with investigating all questions relating to

representation status, including whether the public employees to

be included in the unit share a community of interest and

"whether there is agreement among the parties as to the

appropriateness of the alleged unit," and disposing of those

questions "[a]fter completion of the investigation or hearing, as

the case may be, or upon the consent of the parties" (4 NYCRR

201.9 [a] [1]; [g]; see Civil Service Law § 205 [5] [b]). A fair

reading of the applicable regulatory provisions demonstrates that

the Director is not required to conduct an independent inquiry

into representation issues when the parties agree on unit

placement (see 4 NYCRR 201.9 [a] [1]; [g]). Here, the

stipulation of settlement reflected that the parties agreed that
-4- 520713 

the employees to be included in the unit, whose positions were

listed in an attached appendix, did not perform duties that fell

under the classification of managerial or confidential and that

they shared a community of interest with the employees in the

PS&T unit. Neither the parties' submissions nor the evidence

before the Director demonstrated that the placement was

inappropriate (compare 22 PERB ¶ 4023 [1989]; 4 PERB ¶ 3017

[1971]).

We are also unpersuaded by petitioner’s contention that

PERB acted arbitrarily and capriciously by refusing to allow it

to withdraw from the stipulation on the basis that it had

"improvidently" entered into it. Stipulations of settlement are

favored by the courts and will not be disturbed unless they are

sullied by fraud, collusion, mistake or accident (see Hallock v

State of New York, 64 NY2d 224, 230 [1984]; Matter of McLaughlin,

97 AD3d 1051, 1052 [2012]), or are unconscionable or otherwise

against public policy (see McCoy v Feinman, 99 NY2d 295, 302

[2002]; Matter of Willie L.C., 65 AD3d 683, 685 [2009]). In

addition, a stipulation may not be invalidated on the basis of

unilateral mistake where the mistake arose out of a party's

failure to ascertain facts that were available at the time that

it entered into the stipulation (see Da Silva v Musso, 53 NY2d

543, 550-552 [1981]; Culver & Theisen v Starr Realty Co. [NE],

307 AD2d 910, 911 [2003]; Lowe v Steinman, 284 AD2d 506, 508

[2001]; cf. Matter of Frutiger, 29 NY2d 143, 150-151 [1971]). 

Here, petitioner's sole basis for seeking rescission of the

stipulation was that it failed to equip the impacted agencies

with the training necessary to determine whether an employee was

performing in a managerial or confidential capacity and that it,

therefore, "ha[d] reason to believe that certain of the employees

continue[d] to perform duties that are appropriately deemed

managerial or confidential." Having entered into the stipulation

of settlement roughly 21⁄2 years after PEF filed the underlying

representation petition with PERB, petitioner had sufficient time

to investigate and discover the nature of the duties assigned to

the employees in the 250 at-issue positions, and its failure to

do so in a timely manner does not warrant invalidation of the

stipulation of settlement (see Da Silva v Musso, 53 NY2d at 550-

552; Vermilyea v Vermilyea, 224 AD2d 759, 761 [1996]). Moreover,
-5- 520713 

petitioner did not identify those employees that they assert were

improperly placed into the PS&T unit or provide any evidence to

substantiate its conclusory claims (see Broadway Famous Party

Rental v Cipriani 5th Ave., 289 AD2d 45, 45 [2001]; Matter of

Matinzi v Joy, 96 AD2d 780, 781 [1983], affd 60 NY2d 835 [1983]). 

Accordingly, we decline to disturb PERB's determination.

To the extent that petitioner's remaining arguments have

not been expressly addressed herein, we have reviewed them and

find them to be without merit.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court