Matter of Civil Serv. Tech. Guild Local 375, AFSCME, v City of New York

Matter of Civil Serv. Tech. Guild, Local 375, AFSCME, v City of New York 2009 NY Slip Op 00454 [58 AD3d 581] January 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 11, 2009

In the Matter of Civil Service Technical Guild, Local 375, AFSCME, Appellant,
v
City of New York et al., Respondents.

—[*1] Rachel J. Minter, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for City of New York, respondent.

Steven C. Decosta, Office of Collective Bargaining, New York (John F. Wirenius of counsel), for New York City Office of Collective Bargaining, Board of Collective Bargaining and Marlene A. Gold, respondents.

Appeal from order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about August 29, 2007, which denied petitioner labor union's application pursuant to Civil Service Law § 209-a (5) and CPLR article 78 for preliminary injunctive relief enjoining respondent City from implementing a new timekeeping system pending a final determination by respondent Board of Collective Bargaining of improper employer practice charges filed by the union, and granted the City's cross motion to dismiss the petition in its entirety, unanimously dismissed as moot and Supreme Court's order vacated, without costs.

The union effectively concedes that its appeal has been rendered moot by the Board's final decision on the underlying improper practice charges (Civil Service Law § 209-a [5] [d]), but represents in its brief that it "nonetheless assumed the cost of an appeal because of the disproportionate precedential value this erroneous opinion will have." As the City's response to the prospect of a mootness dismissal is simply to defer to our discretion to vacate the underlying [*2]order "in order to prevent [it] . . . from spawning any legal consequences or precedent" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 718 [1980]), we vacate Supreme Court's order. Concur—Saxe, J.P., Friedman, Nardelli, Sweeny and DeGrasse, JJ. [See 2007 NY Slip Op 32728(U).]