102 Misc. 2d 637 | N.Y. Sup. Ct. | 1980
OPINION OF THE COURT
The petitioner, Herald Company, has commenced a CPLR article 78 proceeding against the respondents for a judgment
Upon the service of the notice of petition and petition upon the respondents, and prior to the expiration of respondents’ time to answer, the respondents moved pursuant to CPLR 3211 (subd [a], par 10) to dismiss the petition upon the grounds that the court should not proceed in the absence of a person who should be a party. The respondents also moved to dismiss the petition pursuant to CPLR 3211 (subd [a], par 7) upon the grounds that the petition failed to state a cause of action; however, on the return date of this motion, this portion of the respondents’ motion was withdrawn.
The respondents urge that some person must be designated to represent the interests of the teacher in question and suggest that the teacher’s bargaining agent, Syracuse Teachers Association, be designated a party to the proceeding. The petitioner claims that the teacher is not a necessary party inasmuch as the proceeding is designed to review a denial by a public official of access to materials and that the Freedom of Information Law does not require that the individual who may be the subject matter of public records be joined as a party.
Subdivision 2 of section 87 of the Public Officers Law
The foregoing discussion relating to certain exceptions permitting the denial of access to public records is not intended by the court to so limit any challenge on the merits by the respondents. It is, however, intended to emphasize the importance that the Legislature has attached to the legitimate interests of the individual in determining whether the requested information should be released.
CPLR 1001 entitled, "Necessary joinder of parties”, states in subdivision (a) that persons ought to be parties "who might be inequitably affected by a judgment in the action”. In view of the unquestionable personal interest the teacher has in respect to the petitioner’s application, and in view of the legal and factual challenges that the teacher may wish to interpose to petitioner’s application, the teacher would be inequitably affected by a judgment if he or she were not allowed to participate (see Patrolmen’s Benevolent Assn. of Newburgh v City of Newburgh, 94 Misc 2d 598).
Pursuant to CPLR 1001 and 7802 (subd [d]), respondents’ motion is granted to the extent that the teacher in question shall be included in this proceeding as a party respondent.
The teacher may not be included by name as a party respondent inasmuch as this would reveal the teacher’s iden
The court has been advised by counsel that the teacher is presently represented in the disciplinary hearing by Bernard Ashe, Esq., Ira P. Rubtchinsky, Esq., of counsel. Consequently, pursuant to CPLR 308 (subd 5), the notice of petition and petition shall be served upon the respondent teacher by serving Mr. Rubtchinsky. Service may be made by certified mail on or before January 25, 1980. The notice of petition shall designate February 25, 1980 as the return date of this proceeding and it will be adjourned to that date.
The respondents School District and Dr. Robert E. Cecile, president of the board of education, shall serve their answer to the petition within 10 days after service with notice of entry of an order determining this motion.