Matter of Madeleine S. v Mills

[*1] Matter of Madeleine S. v Mills 2006 NY Slip Op 51359(U) [12 Misc 3d 1181(A)] Decided on June 9, 2006 Supreme Court, Albany County Sackett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2006
Supreme Court, Albany County

In the Matter of the Application of Madeleine S. and STEPHEN S., on behalf of their children J.S., K.S., J.S., and F.S., Petitioners,

against

Richard P. Mills, as Commissioner of the Education Department of the State of New York, Respondent.



XXX



APPEARANCES:

Smith, Finkelstein, Lundberg, Isler and

Yakaboski, LLP

Attorneys for Petitioners

456 Griffing Avenue - P.O. Box 389

Riverhead, New York 11901

JeanMarie Gunderson, Esq., of Counsel

Eliot Spitzer, Attorney General of the

State of New York

Attorney for Respondent

The Capitol

Albany, New York 12224

Steven H. Schwartz, Principal Attorney,

Of Counsel

Robert A. Sackett, J.

Petitioners Madeleine S. and Stephen S., on behalf of their children J.S., K.S. J.S.,and F.S., commenced this CPLR article 78 [FN1] proceeding challenging a decision by respondent New York State Education Commissioner Richard P. Mills [the "Commissioner"] which dismissed the petitioners' appeal [FN2] of the determination of the Board of Education of the West Islip [New York] Union Free School District that, inter alia, petitioners were not residents of the West Islip school district. The Commissioner dismissed the appeal in question as untimely, and alternatively, on the merits.

Respondent Commissioner moves to dismiss the petition on the grounds that petitioners' appeal was untimely commenced and that the petitioners have failed to name necessary parties to the proceeding.

Procedural History

The salient facts are as follows. It is undisputed that the West Islip Union Free School District ["West Islip"] and the Bay Shore Union Free School District ["Bay Shore"] are separated by a waterway known as the Trues Creek [the "Creek"]. Petitioners claim that the Creek, and therefore the school district boundary, has at all times bisected their property, and thus, pursuant to Education Law §3203, they are entitled to choose which school district their children may attend tuition-free. It is the position of both school districts that petitioners' property is located entirely within Bay Shore. Bay Shore further contends that this has been the case since both districts were formed in 1914.

Subsequent to an investigation by West Islip, the petitioners were notified by letter dated January 31, 2003, that their children were not district residents. By letter dated September 4, 2003, West Islip notified the petitioners that, among other things, their children were being excluded from the subject school district effective September 12, 2003. As a result, petitioners commenced an action in Suffolk County Supreme Court seeking to compel West Islip to accept their children as students and to enjoin the school district from removing the children from its schools. A temporary stay was issued preventing the school district from removing the petitioners' children from its schools pending a resolution of the matter.

By order dated August 4, 2004, Suffolk County Supreme Court concluded that it did not have jurisdiction of the matter, dismissed the petition, and "transferred" the proceeding to the Commissioner. The petitioners appealed, and on September 2, 2004, the Appellate Division, Second Department, issued an order to show cause which included a stay which maintained the status quo pending the appeal. [*2]

By letter dated September 17, 2004, petitioners' counsel was informed by the State Education Department ["SED"] Appeals Coordinator that she had received the August 4, 2004 court order but had not received from counsel either a petition to the Commissioner under Education Law §310 or copies of court papers. The Appeals Coordinator further advised petitioners' counsel that if petitioners wished to commence an appeal to the Commissioner under Education Law §310, counsel must comply with Parts 275 and 276 of the Commissioner's regulations.

By letter dated September 23, 2004, petitioners' counsel wrote to the SED Appeals Coordinator and enclosed papers which purported to comply with the aforesaid regulations. In addition, petitioners' counsel requested that the Commissioner grant a stay pending a decision on the matter. By letter dated September 30, 2004, the SED Appeals Coordinator informed petitioners' counsel that the petition does not comply with the regulations and therefore she was returning same. She further provided counsel with a copy of the relevant regulations and advised counsel that a new petition which conforms to the regulations may be served and filed, along with the required filing fee.

On or about November 1, 2004, a petition which complied with the Commissioner's regulations was served upon West Islip. By letter dated November 8, 2004, the SED Appeals Coordinator informed petitioners' counsel that the petition had been received, and advised both petitioners and West Islip of the procedural steps necessary for review of the matter. By letter dated November 15, 2004, the stay was denied by the Commissioner.

By decision rendered on August 31, 2005, the Appellate Division, Second Department, vacated the stay and dismissed the petitioners' appeal.

Petitioners discharged their attorney and by letters to the Commissioner dated September 11, 2005, they requested reconsideration of their request for interim relief. By letter dated September 13, 2005, the SED Appeals Coordinator advised petitioners that their request for a stay was denied.

On September 22, 2005, the Commissioner issued his decision in Appeal of Geier and Appeal of [Petitioner], 45 Ed Dept Rep 230 (Decision No. 15, 309), dismissing the appeal as untimely, and alternatively on the merits. Specifically, the Commissioner found, in relevant part, that: "[Petitioner's] appeal, however, must be dismissed as untimely. [Petitioner] commenced her appeal on November 1, 2004, more than a full year after West Islip's September 4, 2003 letter notifying her of its decision to exclude her children from its schools. An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of R.W., 40 Ed Dept Rep 671, Decision No. 14, 580; Appeal of Goltz, 40 id. 623, Decision No. 14, 571).In this case, I find that [Petitioner] did not commence her appeal within a reasonable time after her Supreme Court proceeding was dismissed. Preliminarily, I note that no legal procedure exists which [*3]authorizes the Supreme Court to "transfer" an Article 78 proceeding to the Commissioner of Education. However, even if the court order initially left [petitioner] with the mistaken impression that the matter had been automatically "transferred," [Petitioner's] attorney was advised by my Office of Counsel in a letter dated September 17, 2004 that he would need to comply with the procedures set forth in Parts 275 and 276 of the Commissioner's regulations in order to commence an appeal. Despite this letter,[petitioner's] attorney merely forwarded the court papers and failed to comply with any of the cited regulations. By letter dated September 30, 2004, my Office of Counsel again notified [petitioner's] attorney of the deficiencies. An adequate petition was not served until November 1, 2004, almost 90 days after the dismissal of the court proceeding".

The Commissioner further stated that: "While I have afforded some latitude in procedural matters to petitioners who are not represented by counsel (see Appeal of Goltz, 40 Ed Dept Rep 623, Decision No. 14, 571; Appeal of Miller, 39 id. 348, Decision No. 14, 256), [petitioner] was represented by an attorney at the time of the commencement of her appeal. I have repeatedly held that, absent unusual circumstances, ignorance of the appeals process does not establish good cause for delay (Appeal of Goltz, 40 Ed Dept Rep 623, Decision No. 14, 571; Appeal of Tomasetti, 39 id. 513, Decision No. 14, 296; Appeal of Amara S., 39 id. 90, Decision No. 14, 182). Accordingly, I find no unusual circumstances present here to excuse [petitioner's] delay and her appeal must be dismissed as untimely..."

Discussion

The argument respondent advances in seeking to dismiss the petition is three-pronged. Respondent first argues that the Commissioner's determination is rationally-based and should be upheld; second, that petitioners' appeal to the Commissioner was untimely; and that, third, the petitioners have failed to join West Islip and Bay Shore as necessary parties to the proceeding.

In turn, petitioners allege that there are issues of fact which mandate denial of respondent's motion on timeliness grounds. Petitioners further argue that West Islip and Bay Shore are not necessary parties to the instant proceeding because there is a "unity of interest" between the Commissioner and the school district and the rights of the school districts are being protected by the Office of the Attorney General.

It is well established that judicial review of an administrative determination is limited to whether the administrative determination is arbitrary and capricious or lacks a rational basis (see generally Matter of Pell v Bd. of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & [*4]Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Consequently, even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency where the administrative determination is supported by the record (see Matter of Martin v Ronan, 44 NY2d 374, 380-381 [1978]).

It is undisputed that the Commissioner of Education's regulations provide, in pertinent part, that: "[a]n appeal to the commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown" (8 NYCRR 275.16). The reason for any delay in bringing the appeal must be set forth in the petition (id.).

As a prefatory matter, the Court concurs with respondent that the decision or act complained of is the determination by West Islip, conveyed to the petitioners by letter dated September 4, 2003, that their children were being excluded from West Islip schools effective September 12, 2003. Nevertheless, even assuming that the time within which the petitioners had to appeal was to be measured from August 4, 2004, the date of the Suffolk County Supreme Court's dismissal of their earlier proceeding and purported transfer to the Commissioner, as petitioners herein maintain, the appeal was still not commenced until almost 90 days thereafter.

Notwithstanding petitioner's argument that the August 4, 2004 order was binding on the Commissioner and served to commence their appeal, there is no dispute that there is no procedural mechanism for a court to "transfer" a case from Supreme Court to the Commissioner. Petitioners refer this Court to no legal authority to support such a position. Indeed, the September 17, 2004 letter from the SED Appeals Coordinator to petitioners' counsel specifically states, in pertinent part, that the order in question "purports to transfer the matter to the Commissioner of Education [emphasis provided]." Significantly, the aforesaid letter further specified that if petitioners wanted to commence an appeal to the Commissioner under Education Law §310, they needed to comply with the Commissioner's procedural regulations set forth in Parts 275 and 276.

In addition, as the Commissioner was not a party to the Suffolk County Supreme Court action, he is not bound by any determination emanating therefrom (see Cuomo v Long Island Lighting Co., 71 NY2d 349, 357 [1988]). Nor is there any merit to petitioners' contention that the Commissioner was obligated to "overturn the Order if he deemed it appropriate."

Nor does the Court find tenable petitioners' claim that subsequent requests by the Commissioner's office for submittals, via letters dated September 17, 2004 and September 30, 2004, "merely supplemented the transfer of the matter by the Supreme Court." In the first instance, neither one of the aforementioned letters contains a request for submissions by petitioners. Rather, the first letter, in addition to indicating that the matter was "purportedly" transferred, explicitly states that the SED Appeals Coordinator did not receive a petition to the Commissioner under Education Law §310, and advised petitioners' counsel that if he wished to commence such an appeal then he needed to comply with the specified regulations. In the second aforementioned letter, the SED Appeals Coordinator expressly advised petitioners' counsel that the petition did not comply with the regulations and was being returned to counsel. The letter further informed counsel that a new petition which conformed to the regulations, may be served upon the respondent along with the required filing fee.

Petitioners further argue that the Commissioner implicitly recognized that he was bound by said order as his determination in the matter was not rendered until September 22, 2005, which was [*5]after the August 31, 2005 Appellate Division, Second Department's dismissal of the appeal of the original Supreme Court order. However, as respondent properly observes, petitioners have proffered no evidence to support such a contention and, in fact, the record demonstrates that the Commissioner's Office specifically apprised petitioners' counsel of the steps necessary to commence an appeal after it had received a copy of the Supreme Court order from petitioners' counsel. Thus, the Court concurs with respondent, that there is nothing contained in either of these letters to suggest that the Commissioner's Office considered the "purported" transfer an appeal under the cited regulations. To the contrary, both letters discussed the need for petitioners' counsel to follow the procedures set forth in the Commissioner's regulations governing the commencement of an appeal.

As respondent properly argues, petitioners are mistaken in their contention that their time to appeal began to run only after the Commissioner's Office notified them in its September 17, 2004 letter as to how to effect an appeal. Clearly, as stated, infra, the Commissioner's regulations provide that an appeal to the Commissioner "must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16)", or such time may be extended if, in the Commissioner's discretion, "for good cause shown." Pursuant to these regulations, even if one were to measure petitioners' time within which to commence an appeal from the August 4, 2004 date of the Suffolk County Supreme Court dismissal of their earlier proceeding, it cannot be said that petitioners' appeal to the Commissioner was timely commenced.

Nor does the September 17, 2004 letter from the Commissioner's Office contain any language which would compel a different conclusion. While the Commissioner's Office may have advised petitioners' counsel of the steps to take to effect a proper appeal, such action cannot serve to trigger the limitations period for commencing an appeal, as petitioners so vigorously assert. Also without merit is petitioners' claim that even if the Commissioners' regulations superceded the Suffolk County Supreme Court order, the petitioners timely filed their appeal on September 23, 2004, by submitting the documents requested in the Commissioner's September 17, 2004 letter, within six days of the date thereof. It is well settled that appeals are commenced upon the proper service of papers upon all named papers (see Appeal of Town of New Windsor, 44 Ed Dept Rep [Decision No. 15, 166, Jan. 31, 2005]), and not the "filing". Petitioners' affidavits of service evincing service upon West Islip and its attorney clearly indicate that service was effected on November 1, 2004, well beyond the 30-day statutory period for commencing appeals.

Petitioners concede that the Commissioner rejected their papers as defective as is demonstrated in the September 30, 2004 letter they received from the Commissioner's Office, but argue that any defects in the appeal were cured by subsequent submissions, which relate back to the September 23, 2004 filing date. This contention, however, is incorrectly premised upon petitioners' belief that the appeal is commenced upon filing and not service. In this respect, petitioners' reliance on Appeal of R.R. and K.R., 41 Ed Dept Rep, Decision No. 14, 726, May 20, 2002, is mistaken, wherein the petitioner attempted to file and serve their appeal papers within the 30-day limitation period. The appeal was returned as defective and petitioners were notified that if a corrected appeal were served within two weeks, it would relate back to the original service date. In the instant case, however, petitioners failed to serve any papers within the 30-day time period and, thus, there is no service to relate back to.

On the other hand, the Court does find more compelling, the determination reached by the Commissioner in Appeal of Goltz, 45 Ed Dept Rep 623 (Decision No. 14, 571, May 7, 2001), [*6]wherein the appeal was dismissed as untimely on facts substantially similar to those presented herein. In Appeal of Goltz, the petitioner, who was represented by counsel, commenced an CPLR article 78 proceeding in Suffolk County Supreme Court, that court then purported to transfer the matter to the Commissioner, and the petitioner's attorney forwarded the court's order to the Commissioner. Petitioner's attorney was then advised of the need to comply with the Commissioner's regulations but failed to commence an appeal until approximately four months after the alleged transfer from Supreme Court, and the appeal was not commenced until more than a month after the attorney was notified of the steps required to commence an appeal. In light of this, and other decisions rendered by the Commissioner cited to by respondent in its papers, the Court finds no merit to petitioners' argument that the Commissioner's determination which is at the heart of this controversy digresses from either the regulations or precedent.

It is true that the Commissioner acknowledged the possibility that the petitioners may have been left with the "mistaken impression" by Supreme Court that the pending matter before that court would be automatically transferred to the Commissioner, but any such impression was dispelled by the Commissioner in the correspondence sent to petitioners' counsel wherein he was apprised of the steps to properly commence an appeal. Notably, petitioners' claim that their counsel's alleged ignorance of the fact that he had to submit anything beyond the Court's order to commence petitioners' appeal is an unacceptable excuse. Indeed, even if counsel were initially unaware of the proper procedure, he was subsequently notified by the Commissioner's Office that there were certain regulations with which he needed to comply to commence a proper appeal.

Consequently, in the Court's view, the Commissioner's determination in finding that petitioners' appeal was untimely commenced was neither arbitrary nor capricious and has a rational basis.

Finally, petitioners contend that West Islip and Bay Shore are not necessary parties to the instant proceeding because there is a "unity of interest" between the Commissioner and the school districts and the rights of the said districts are being protected by the Office of the Attorney General. It is well established that a party whose interest may be inequitably or adversely affected by a potential judgment must be made a party to a CPLR article 78 proceeding (see CPLR 1001[a]). Unquestionably, under the circumstances herein, both West Islip and Bay Shore have interests which may be adversely affected by this Court's decision. As pointed out by respondent, not only is it unclear whether the two districts agree about how to determine where the boundary line between the two is located, but there seems to be an ongoing dispute about tuition payments, which is pending in Suffolk County Supreme Court. In addition, counsel in this matter have agreed to a stay to remain in effect until the end of the current school year which allows the petitioner's children to continue to attend in that school district, an issue on which West Islip would likely want an opportunity to be heard.

Notwithstanding petitioners' arguments to the contrary, there are several cases in which a CPLR article 78 challenge to a decision of the Commissioner was dismissed for failure to name a school district as a party to the proceeding (see, e.g. Matter of Ogbunugafor v New York State Educ. Dept, 279 AD2d 738 [2001], lv denied, 96 NY2d 712 [2001]). Nor does the fact that neither of these entities chose to intervene, despite their knowledge of the fact that the instant proceeding was pending, compel a different conclusion, and petitioners' failure to join them as parties to this proceeding warrants dismissal. [*7]

In light of the foregoing, respondent's motion is granted and the petition is dismissed, without costs.

This is the Decision and Judgment of this Court. All papers, including the original copy of this Decision and Judgment, are being returned to the Attorney General, who is not relieved from the provisions of CPLR 2220 with respect to filing, entry and notice of entry.

Dated: Monticello, New York

June 9, 2006

ENTER

_______________________________

Hon. Robert A. Sackett, JSC

Footnotes

Footnote 1:The instant proceeding was initially brought in Suffolk County Supreme Court before venue was transferred to Albany County via a "so ordered" stipulation entered into between petitioners' counsel and the Hauppauge Office of the Attorney General. The stipulation further provides that "the Temporary Restraining Order shall remain in effect until the return date and any adjournment of the return date in Supreme Court, Albany County." The temporary stay prevented the West Islip school district from removing petitioners' children from the school.

Footnote 2:The basis of this proceeding is the Commissioner's decision in consolidated appeals: Appeal of Geier and Appeal of [Petitioner], 45 Ed Dept Rep 230 [Decision No. 15, 309, Sept. 22, 2005].