                          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.
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      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 2½ 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
