In the Matter of Sullivan County Patrolmen's Benevolent Association, Inc., Petitioner,
New York State Public Employment Relations Board et al., Respondents.
Calendar Date: November 13, 2019
Tuttle Law Firm, Clifton Park (James B. Tuttle of counsel),
P. Quinn, Public Employment Relations Board, Albany (Ellen M.
Mitchell of counsel), for New York Public Employment
Relations Board, respondent.
Wallens Gold & Mineaux LLP, Albany (Earl T. Redding of
counsel), for County of Sullivan and another, respondents.
Before: Mulvey, J.P., Devine, Aarons and Pritzker, JJ.
pursuant to CPLR article 78 (partially transferred to this
Court by order of the Supreme Court, entered in Albany
County) to review a determination of respondent Public
Employment Relations Board dismissing petitioner's
improper employer practice charge.
the collective bargaining representative for the Sullivan
County Sheriff's Office, filed two improper employer
practice charges against respondents County of Sullivan and
the Sullivan County Sheriff (hereinafter collectively
referred to as the County respondents). Following a hearing,
the Administrative Law Judge issued a decision finding that
the County respondents were guilty of one charge but
dismissed the other charge. The County respondents filed
exceptions thereto and, upon administrative appeal,
respondent Public Employment Relations Board (hereinafter
PERB) reversed the Administrative Law Judge's
2018, petitioner commenced this CPLR article 78 proceeding
solely against PERB seeking to annul its determination. On
June 21, 2018, petitioner filed an amended petition adding
the County respondents as parties. The County respondents
answered and, as an objection in point of law, asserted that
the amended petition was untimely. Petitioner replied to this
objection by relying on the relation back doctrine. PERB
submitted a reply arguing that if Supreme Court agreed with
the County respondents' untimeliness objection, the
amended petition should be dismissed against it due to
petitioner's failure to join necessary parties. Supreme
Court dismissed the amended petition insofar as asserted
against the County respondents because it was not timely
filed and transferred the remaining portion to this Court
(see CPLR 7804 [g]).
pertinent here, an aggrieved party seeking judicial review of
a final order issued by PERB must commence a CPLR article 78
proceeding within 30 days after being served with a copy of
an order sought to be reviewed (see Civil Service
Law § 213 [a] [i]; Matter of New York State Pub.
Empl. Relations Bd. v Board of Educ. of City of Buffalo,
39 N.Y.2d 86, 90 ). The record reflects that PERB's
order was served on petitioner's counsel on April 25,
2018. The amended petition adding the County respondents as
parties, however, was not filed until June 21, 2018 i.e.,
more than 30 days after the PERB order was served. To have
the amended petition deemed timely insofar as asserted
against the County respondents, petitioner relies on the
relation back doctrine. This doctrine requires that
petitioner establish "(1) that the claims arose out of
the same occurrence, (2) that the later-added respondent[s]
[were] united in interest with a previously named respondent,
and (3) that the later-added respondent[s] knew or should
have known that, but for a mistake by petitioner as to the
later-added respondent[s'] identity, the proceeding would
have also been brought against [them]" (Matter of
Sullivan v Planning Bd. of the Town of Mamakating, 151
A.D.3d 1518, 1519-1520 , lv denied 30 N.Y.3d
906 ; see Buran v Coupal, 87 N.Y.2d 173, 178
). Petitioner and the County respondents focus on the
view, the record fails to disclose that the failure to name
the County respondents in the original petition was due to a
mistake as to their identity. The explanation provided by
petitioner was that it did not believe that the County
respondents were necessary parties to the proceeding. Such
mistake, however, is a mistake of law, which is not
contemplated by the relation back doctrine (see Windy
Ridge Farm v Assessor of Town of Shandaken, 45 A.D.3d
1099, 1099 , affd 11 N.Y.3d 725');">11 N.Y.3d 725 ). Given
that petitioner was aware of the County respondents'
existence and "failed to appreciate that [they] were
legally required to be named in proceedings of this
type" (Matter of Ayuda Re Funding, LLC v Town of
Liberty, 121 A.D.3d 1474, 1476  [internal
quotation marks and citation omitted]), petitioner's
reliance on the relation back doctrine is unavailing (see
Mongardi v BJ's Wholesale Club, Inc., 45 A.D.3d
1149, 1151 ; Matter of Baker v Town of
Roxbury, 220 A.D.2d 961, 963-964 , lv
denied 87 N.Y.2d 807');">87 N.Y.2d 807 ).
as the County respondents are necessary parties to this
proceeding and they demonstrated that the amended petition
was not timely commenced against them, the amended petition
must also be dismissed insofar as asserted against PERB
(see Windy Ridge Farm v Assessor of Town of
Shandaken, 11 N.Y.3d 725');">11 N.Y.3d 725, 727 ; Matter of
Ayuda Re Funding, LLC v Town of Liberty, 121 A.D.3d at
1476). In view of our determination, petitioner's
remaining assertion is academic.
Mulvey, J.P., Devine and Pritzker, JJ., concur.
that the determination is confirmed, without costs, and