Matter of R.S. v Massapequa Union Free School Dist.

[*1] Matter of R.S. v Massapequa Union Free School Dist. 2006 NY Slip Op 50406(U) [11 Misc 3d 1066(A)] Decided on March 20, 2006 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2006
Supreme Court, Nassau County

In the Matter of the Application of R.S. and A.E. as Parents and Natural Guardians of C.S., and C.S., Petitioners, for a Judgment Pursuant to CPLR Article 78

against

The Massapequa Union Free School District, The Board of Education of the Massapequa Union Free School District, and Maureen E. Flaherty, Ph.D., Superintendent of Schools, Individually and in Her Capacity as a Superintendent of Schools, Respondents.



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Law Offices of Genevieve Lane LoPresti

Attorney for Petitioners

552 Broadway, Suite B

Massapequa, NY 11758

Guercio & Guercio

Attorneys for Respondents

77 Conklin Street

Farmingdale, NY 11735

Thomas P. Phelan, J.

Petitioners bring the within proceeding pursuant to CPLR Article 78 for an order annulling and vacating the determination of respondents which denied petitioners' request to either participate [*2]in the PEX Program in lieu of attending physical education classes or, in the alternative, attend physical educational classes while wearing tape over her pierced earring. Additionally, petitioners seek an order compelling respondents to expunge and remove any detrimental grades on infant petitioner's records resulting from her non-participation in gym class and sanctioning respondents for their past conduct. Alternatively, petitioners seek an order compelling respondents to hold a hearing with representation by counsel and presentation of testimony.

Respondents cross-move for an order vacating the temporary restraining order contained in the Order to Show Cause dated January 3, 2006 [Mahon, J.] commencing the underlying proceeding and dismissing the petition as a matter of law pursuant to CPLR 7804(f).

Student petitioner is currently in the ninth-grade of the Massapequa School District where, it appears, she enjoys good grades but suffers the cruelty of her peers. That respondent School District is unable to satisfactorily protect student petitioner from the consequences of such deliberate teenage misconduct is not surprising and adds to the emotionally charged circumstances surrounding the within proceeding. It does not, however, impact on the far narrower legal issues raised by this proceeding.

As alleged by petitioners, student petitioner has a medical condition known as granulomatous which, inter alia, causes her earlobe piercings to close almost immediately after her earring posts are removed. Since respondents prohibit the wearing of jewelry during gym class, the existence of this medical condition effectively prohibits student petitioner from being able to simply remove her earrings for gym class and re-insert them afterwards.

Petitioners, therefore, bring this proceeding to, in effect, compel an accommodation to student petitioner's condition in lieu of having student petitioner voluntarily forego the wearing of pierced earrings each academic year.

As respondents have moved for dismissal raising various points of law, the court must address these as a threshold matter (see CPLR 7804(f)). Respondents' time to answer will not begin to run unless and until their dismissal motion is denied, after which the petition itself would have to be re-noticed for submission (Id.).

Insofar as respondents seek vacatur of the temporary restraining order contained in the January 3, 2006 Order to Show Cause, such request is academic. By oral determination of the undersigned issued in open court on February 15, 2006, the temporary restraining order was vacated.

Dismissal of the petition is sought on multiple grounds.

Respondents' contention that pursuant to Education Law §3813 the within proceeding requires the filing of a Notice of Claim within 90 days of the accrual of petitioners' claim is rejected. Said provision does not apply where, as here, the relief sought is not money damages but equitable in nature (Ruocco v. Doyle, 38 AD2d 132; Treby v. Commack UFSD, 93 AD2d 891 rev'd. on other [*3]grounds, 61 NY2d 658).

Respondents also raise a statute of limitations defense. The statute of limitations for an Article 78 proceeding such as this is 4 months from when the determination to be reviewed becomes "final and binding" upon petitioners (CPLR 217). In Matter of Edmead v. McGuire, 67 NY2d 714, 716, the Court of Appeals explained that "where the determination is unambiguous and its effect certain, the statutory period commences as soon as the aggrieved party is notified."

Applying said standard, it is clear that for all relief sought regarding actions taken by respondents prior to the 2005/2006 academic year, petitioners' claim accrued no later than their receipt of respondents' unequivocal letter dated December 13, 2004. As the 2005/2006 academic year was beginning, however, respondents disseminated their various school policies anew. In view of same, it cannot be found that petitioners' claims regarding the 2005/2006 academic year are barred by the applicable four-month limitations period.

Nor does it appear that the within proceeding is barred by petitioners' failure to exhaust their administrative remedies (see, Matter of Patti Ann H. v. New York Med. Coll., 88 AD2d 296, 300, aff'd. 58 NY2d 734).

The doctrine of primary jurisdiction, however, warrants dismissal of petitioners' remaining claims. "'[P]rimary jurisdiction' applies even if a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views (citations omitted).'Our courts have long recognized that the management of educational institutions rests on those with special skills and sensitivities.' (Matter of Gray v. Canisius Coll. of Buffalo, 76 AD2d 30, 33.) For this reason, courts should 'only rarely assume academic oversight, except with the greatest caution and restraint' (Matter of Pace Coll. v. Commission on Human Rights of City of NY, 38 NY2d 28, 38. This restraint should be even greater when it is realized that the Legislature has established an administrative agency (i.e., the Board of Regents through the Commissioner of Education) with the very duty, power and authority of academic oversight that the petitioner seeks to have the courts exercise in this matter (Education Law, §§201, 301, 305, 310)." (Id.)

Contrary to petitioners' contention, the within litigation is not premised upon a specific constitutional or statutory provision or "discrete issues of law which do not involve matters of policy", so as to warrant immediate judicial review of respondents' determination (see, Matter of [*4]Walker v. Bd. of Educ., 78 AD2d 982).

Accordingly, respondents' motion to dismiss the within petition is granted. Dismissal is without costs. If they be so advised, petitioners may pursue review by the Commissioner of Education of respondents' determination.

Notwithstanding the foregoing, the court notes that were the merits of the within proceeding properly before this court it could not be concluded that respondents' determination demonstrated bad faith, arbitrariness or irrationality. Rather, and as found in Matter of Patti Ann H. v. New York Med. Coll. (supra, at p.301), despite application of the doctrine of primary jurisdiction, "[i]t appears that [respondents] acted within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based on facts within its knowledge that justified the exercise of its discretionary judgment."

This decision constitutes the order of the court.

Dated: March 20, 2006 THOMAS P. PHELAN

J.S.C.