Lewitas v Ossining Union Free School Dist.

[*1] Lewitas v Ossining Union Free School Dist. 2005 NY Slip Op 52022(U) [10 Misc 3d 1059(A)] Decided on November 28, 2005 Supreme Court, Westchester County Lippman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2005
Supreme Court, Westchester County

Laurence T. Lewitas and ROBIN LEWITAS, Petitioners,

against

Ossining Union Free School District, Respondent.



05-16631



Laurence T. Lewitas, Esq.

Robin Lewitas

Petitioners Pro Se

89 Fifth Avenue, Suite 802

New York, New York 10003

Anna M. Scricca, Esq.

Ingerman Smith, LLP

Attorneys for Respondent

Ossining Union Free School District

150 Motor Parkway, Suite 400

Hauppauge, New York 11788

Jonathan Lippman, J.

FACTUAL AND PROCEDURAL BACKGROUND

This is a CPLR Article 78 proceeding in which petitioners seek to vacate the respondent's decision to deny bussing services to petitioners' daughter, Danielle Lewitas ("Danielle"), in connection with her attendance at the Solomon Schecter Day School of Westchester ("Solomon Schecter"), which is located in White Plains, New York. Danielle and her family have resided within the Ossining Union Free School District since August, 2004. (Affidavit of Laurence T. Lewitas "Lewitas Aff." at ¶ 3). Danielle will turn five years of age on December 8, 2005. Based on respondent's Entrance Age Policy 5140, Danielle is ineligible to be enrolled in kindergarten in the Ossining School District since only children who will have reached "their fifth birthday on or before December 1st of the year of matriculation are entitled to ... be admitted to [*2]kindergarten." (See Ossining School District's Entrance Age Policy 5140, Affidavit of Mary Fountain "Fountain Aff.", Ex. B). Danielle does meet the minimum age requirements at Solomon Schecter for enrollment in kindergarten. (Lewitas Aff. at ¶ 9).

Petitioners' older daughter, Brea, also attends the Solomon Schecter school, and respondent has provided bussing services to Brea during the 2004/2005 school year and since the beginning of this school year (2005/2006). It further appears that respondent bussed Danielle to Solomon Schecter with her sister for a period of several weeks (i.e., September 6, 2005 - September 26, 2005), but has terminated the service based on its determination that Danielle is ineligible for such transportation.

Petitioners contend that their request for bussing services for Danielle began on April 1, 2005 when Mr. Lewitas faxed a memo to Ms. Mary Fountain, Director of respondent's school transportation department. In that fax cover sheet, Mr. Lewitas wrote: "I wish to alert you to the fact that in addition to our other daughter, Danielle, entering kindergarten at Solomon Schecter, there will be a significant increase in lower school students requiring Ossining bussing, some of whom will only be 4 or 5 years old. As such, I ... respectfully request that you earnestly look into a separate bus (at least in the morning) for the lower school."

(Lewitas Aff., Ex. A). It is petitioners' view that the burden was shifted to respondent to follow-up this facsimile by providing petitioners with a formal request for transportation form. Petitioners assert that it was not until August 25, 2005 that respondent "advised [p]etitioners as to the tentative bus schedule and further requested that [p]etitioners fill out official transportation requests for the above mentioned children. Respondent indicated its awareness of the need to bus the children and made no issue whatsoever of the fact that the official' registration forms where [sic] not earlier provided." (Lewitas Aff. at ¶ 6). According to petitioners, "[i]n the months ensuing ... [p]etitioners, relied upon the presumption that bussing would not be an issue." (Id. at ¶ 7).[FN1]

On or about August 29, 2005, petitioners submitted the Request for Non-Public Transportation form (the "transportation request") to respondent.[FN2] According to respondent, after Ms. Fountain reviewed petitioners' transportation request, she called Mr. Lewitas on September 16, 2005 and advised him orally (and followed-up the telephone conversation with a written letter confirming its substance) that based on petitioners' request for transportation, Danielle "is ineligible to enroll in the Ossining Public Schools" and "the District may not provide her with transportation to her non-public school." (Letter dated September 16, 2005 from Mary E. Fountain, Lewitas Aff., Ex. C). Ms. Fountain further advised petitioners that respondent [*3]would cease providing bussing services to Danielle effective September 26, 2005. (Id.)

On September 20, 2005, petitioners appealed this decision to the Ossining School Board. In the appeal letter, petitioners argued, inter alia, that such a decision was "apposite to the terms of the Education Law .... [since] Education Law Section 3635(1) requires a school district to transport all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend." (Letter dated September 20, 2005 from Laurence Lewitas, Esq., Lewitas Aff., Ex. D). Pursuant to a letter from respondent's counsel, George Pauta, Esq. (Ingerman Smith, LLP) to Mr. Lewitas dated September 22, 2005, the School Board denied petitioners' appeal stating that "[b]ased upon the foregoing Commissioner of Education decisions, the District lacks authority to transport Danielle to the Solomon Schechter, W.P., a nonpublic school since she is too young under the District's minimum age entrance policy to attend the District schools ... Consequently, the District must immediately cease providing Danielle with transportation services to Solomon Scheter, W.P." (Letter dated September 22, 2005 from George Pauta, Esq., Lewitas Aff., Ex. E). The instant Article 78 proceeding ensued. In their petition, petitioners assert that "[r]espondent's position and sudden cessation of bus service for Danielle is arbitrary, capricious and without legal basis." (Verified Petition at ¶ 12). Petitioners seek a preliminary injunction: (1) staying the enforcement of the respondent's decision dated September 16, 2005; and (2) compelling respondent to provide bussing services to Danielle.

Respondent moves to dismiss the petition arguing: (1) the Commissioner of Education has primary jurisdiction over respondent's determination and the appeal is not properly before this Court; (2) petitioners' petition fails to state a cause of action; (3) the petition fails to satisfy the requirements for this Court's issuance of injunctive relief; and (4) petitioners' claim that respondent should be estopped from denying bussing to Danielle is legally without merit since "[i]t is well settled that estoppel may not be invoked against a municipality to prevent it from discharging its statutory duties or for the purpose of preventing the municipality from rectifying an administrative error." (Affirmation of Anna M. Scricca, Esq. in Support of Motion to Dismiss "Scricca Aff." at ¶ 32). Petitioners have opposed the motion to dismiss and argue that this Court has jurisdiction over this matter because petitioners are alleging respondent's violation of a statute. Thus, petitioners argue that because "the plain language of Education Law §3635 explicitly requires transportation to be provided to all kindergarten' children...the Commissioner of Education has instituted, and respondent relies upon, a regulation that contradicts the existing statute and attempts to limit the inclusive language of Education Law §3635 to those children old enough to qualify for public schools." (Affirmation of Laurence T. Lewitas, Esq. in Opposition/Reply at ¶¶ 7-8). Petitioners further assert that they have fully satisfied their burden of establishing their entitlement to injunctive relief.

LEGAL DISCUSSION

Petitioners' Assertion of a Statutory Violation Invokes the Jurisdiction of this Court

Respondent moves to dismiss this proceeding on the ground that this appeal may only be heard by the Commissioner of Education pursuant to Education Law § 310 i.e., that the Commissioner has primary jurisdiction over this dispute. Respondent argues that petitioners' assertion that this matter involves the issue of whether respondent has violated Education Law § 3635 is misplaced since "the issue is whether this Court has jurisdiction over an administrative determination made by the Respondent School District in enforcing its own policy." (Reply Affirmation of Robert A. Papa, Esq. "Papa Reply Aff." at ¶ 3).[FN3] As viewed in this light, [*4]respondent argues that it is the Commissioner of Education, and not this Court, who is uniquely qualified to resolve this matter of "Board Policy, and not of statutory construction." (Id. at ¶ 4).

The doctrine of primary jurisdiction is premised on the notion that "a court should refrain from exercising jurisdiction over a matter where an administrative agency also has jurisdiction and a determination of the question involved in the proceeding depends upon the specialized knowledge and experience of the administrative agency ...." (Matter of Pierce v. Monroe 2 Orleans Bd. of Co-op Educational Serv., 195 Misc 2d 178, 180, aff'd,12 AD3d 1046). Given the rationale for the doctrine, courts hold that "[t]he general rule is that an appeal to the Commissioner is the exclusive remedy where the issue involves the professional judgment and

discretion of those responsible for the administration of public schools' .... Where, however, a statutory or constitutional provision is the basis of the dispute or where discrete issues of law are present which do not involve matters of policy, review of a school board's decision by the courts is proper ...." (Matter of Walker v. Board of Ed. of the Olean City School Dist., 78 AD2d 982, 983, quoting Matter of Bokhair v. Board of Ed. of the City of New York, 43 NY2d 855, 856; see also Matter of Pierce, supra, 195 Misc 2d at 180; Marasse v. Buchmueller, 35 Misc 2d 643, 646 ["courts have concurrent jurisdiction with the commissioner of education in actions involving the interpretation of a statute ...."]; Szendy v. Board of Ed., 22 Misc 2d 1,2).

In this Article 78 proceeding, petitioners claim that respondent has violated Education Law § 3635 through its decision to terminate bussing for Danielle since she does not meet the minimum age requirement for matriculation into kindergarten in respondent's public schools.[FN4] Thus, whether respondent's policy is in violation of lawful procedure, arbitrary, an abuse of discretion or an error of law is a question subject to review by this Court pursuant to CPLR Article 78. (Matter of Duncan, 90 Misc 2d 282). The cases relied upon by respondent in support of its argument that the Commissioner of Education has exclusive jurisdiction over this proceeding are inapposite since they all involved appeals from decisions best characterized as educational policy judgments made by school officials.

Because the New York Court of Appeals has made clear that "in litigation between private parties involving only questions of law, where the issue is whether school officials have acted in violation of statute, direct resort to the courts is proper ...." (Matter of Lezette v. Board of Ed., Hudson City School Dist., 35 NY2d 272, 278), courts routinely retain jurisdiction over these claims even though there is concurrent jurisdiction of such claims with the Commissioner of Education pursuant to Education Law § 310.[FN5] For example, in Matter of Crispell v. Rust, 149 Misc 464, petitioner brought an Article 78 proceeding based on a school district's decision to [*5]exclude petitioner's child from attending kindergarten in the school district because the child was not yet five years old. At the time of that case, Education Law § 311 provided that "[t]he board of education of each school district and of each city may maintain kindergartens which shall be free to resident children between the ages of four and six years." Based on this provision of the Education Law, petitioner argued that respondents' decision to deny petitioner's son's admission to kindergarten was illegal and contrary to law. In that case, as in this one, the respondents moved to dismiss the petition on the grounds that the court was without jurisdiction because the Commissioner of Education had primary jurisdiction over the proceeding.

The court disagreed and held that petitioner's resort to the Supreme Court "was his privilege and right. The application herein is one where the board of education of the City of Poughkeepsie is acting in violation of an express statute, which deprived the petitioner and his infant son of valuable rights .... Where there is a statutory interpretation involved, there are a number of authorities for the rule that the Supreme Court has jurisdiction in a proceeding where no application has been made to the state commissioner of education. Jurisdiction is concurrent in certain cases. Although the petitioner is afforded another remedy, relief may still be granted in the Supreme Court in the exercise of sound discretion." (Matter of Crispell, 149 Misc at 466-467; see also Matter of Gundrum v. Ambach, 55 NY2d 872, 873 (petitioner whose child was denied bus transportation by respondent school district on the ground that the distance between the school and petitioner's home exceeded the 15-mile limit of Education Law § 3635(1) had the option "to review the determination of the board either by appeal to the Commissioner of Education or by a special proceeding under CPLR article 78"). The court's rationale for retaining jurisdiction in Matter of Crispell is equally applicable to this case. Here, there are no questions of fact presented or other issues that require the special knowledge of the Commissioner of Education to resolve. Furthermore, petitioners' petition raises the issue of whether respondent's decision violates Education Law § 3635. Accordingly, the Court finds that the Commissioner of Education does not have primary jurisdiction over this proceeding and the petition is properly before this Court.

Respondent is not Required to Provide Transportation

Respondent moves to dismiss the petition on the grounds that assuming all of the facts as alleged in the petition to be true, as a matter of law, respondent "is prohibited from providing transportation to children of non-public schools who are too young to attend the public schools of the district." (Respondent's Memorandum of Law at 14). Respondent argues that petitioners' reliance on Education Law § 3635(1) and the case of Matter of Bd. of Ed. of Cornwall Central School Dist. v. Nyquist, 61 AD2d 132 (hereinafter "Matter of Nyquist"), is misplaced since a fair interpretation of both the statute and the case compels the conclusion that respondent is prohibited from providing transportation to Danielle in this situation. Petitioners oppose the motion and argue that Danielle is entitled to transportation from the respondent as a matter of law. Thus, petitioners contend because the Education Law § 3635 has no age limitation imposed with regard to a school district's obligation to provide bussing to residents attending nonpublic schools, respondent's policy which denies Danielle bussing based on her age contravenes that law.

As an initial procedural matter, while respondent has only moved to dismiss the petition for failure to state a cause of action, this Court may convert the motion to a motion for summary judgment and dispense with the requirement that it provide advance notice of such conversion. Thus, notice is excepted in a case which " involves no issues of fact, but only issues of law fully appreciated and argued by both sides.'" (Historic Albany Found. v. Breslin, 282 AD2d 981, 983, app. dismissed, 97 NY2d 636, quoting Four Seasons Hotels, Ltd. v. Vinnik, 127 AD2d 310, 320; see also Spilka v. Town of Inlet, 8 AD3d 812, 813; Wiesen v. New York University, 304 AD2d 459; Kulier by Kulier v. Harran Transp. Co., 189 AD2d 803; Matter of Baum v. The Town Bd. of the Town of Sand Lake, 98 AD2d 918; Odrich v. The Trustees of [*6]Columbia University in the City of New York, 2005 NY Slip Op 51857[U]). In this proceeding, neither side disputes the facts as set forth by petitioners, and in opposition to respondent's motion, petitioners have requested that this Court rule as a matter of law in their favor since the only issue is this Court's interpretation of a statutory provision (i.e., whether Danielle is entitled to bussing based on a fair reading of Education Law § 3635).

While Education Law § 3635 provides that respondent is required to "transport all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend," pursuant to a regulation promulgated by the Commissioner of Education, Danielle is not legally attending Solomon Schecter at the present time. That regulation provides that "a kindergarten shall not admit a child who is younger than the age of entrance into the public schools established by the school district in which that child resides." (8 N.Y.C.R.R. § 125.9).[FN6] Thus, based on the language of the statute and regulation, respondent may not provide Danielle with bussing since she is not legally attending Solomon Schecter's kindergarten as she is younger than the age required by respondent for entrance to kindergarten in respondent's public schools.

Petitioners rely on Matter of Nyquist, supra, and argue that the Appellate Division, Third Department has interpreted Education Law§ 3635 to mean that with regard to a school district's duty to transport children residing in its district to nonpublic schools, " there is no limitation of this duty for children of any age.'" (Affirmation of Laurence T. Lewitas, Esq in Opposition/Reply at 5, quoting Matter of Nyquist, supra, 61 AD2d at 133). The Appellate Division, Third Department's holding in Matter of Nyquist, however, does not control the resolution of this case as the holding of that case was dependent upon a Commissioner of Education's regulation that has been repealed since that case was decided. Thus, at the time Matter of Nyquist was decided, the Commissioner of Education's regulation provided that a child was legally attending a kindergarten in a non-public school if the child was less than one month younger than the minimum age requirement for enrollment into kindergarten imposed by the school district in which the child resided. In Matter of Nyquist, the parents had appealed the school district's decision to deny transportation services to their child to the Commissioner of Education. The Commissioner of Education had ruled that the school district was required to provide [*7]transportation to the child since she was only two days younger than the age required for enrollment in the district's kindergarten and she was, therefore, legally attending the registered non-public kindergarten in accordance with Education Law § 3635's terms. In upholding the Commissioner of Education's decision, the Appellate Division, Third Department discussed how the Commissioner of Education, through the authority vested in him pursuant to Education Law 207, had "prescribed regulations for the voluntary registration of nonpublic nursery schools and kindergartens, such as the school in which the child in question was enrolled." (Matter of Nyquist, supra, 61 AD2d at 133-134). Accordingly, the Court held that the Commissioner of Education's decision that the child was legally attending the kindergarten in accordance with that regulation, and that she was therefore entitled to transportation from the school district, was not arbitrary or capricious.

In this case, the new regulation that has been enacted since the repeal of the regulation relied upon in Matter of Nyquist provides that "a kindergarten shall not admit a child who is younger than the age of entrance into the public schools established by the school district in which that child resides." (8 N.Y.C.R.R. § 125.9). Based on his regulation, the Commissioner of Education has held that school districts are prohibited from providing bussing services to children who have not attained the minimum age required by the district for admission into kindergarten. (Appeal of Wheelwright, 41 Ed Dept Rep 454, 456 [Decision No. 14,744]). The Commissioner of Education has also based the transportation denials on the grounds that any other policy would violate the holding of a federal district court decision which held that "it was a violation of the Establishment of Religion Clause of the First Amendment to the United States Constitution for a board of education, which does not admit to the public schools children who become five years old after December first of a given school year, to provide transportation, health and welfare services or other benefits to children who become five years old after December first of a given school year and who attend nonpublic schools." (Appeal of Smith, 37 Ed Dept Rep 583, 587 [Decision No. 13,934]; citing Gorman v. Tilles, US Dist Ct, EDNY, Pratt, J., 79 Civ 1865). In connection with some of the appeals, the Commissioner of Education has further explained that the rule remains the same regardless of whether or not the child could be accommodated on a bus at no additional cost to the school district. (Appeal of Meyers, 27 Ed Dept Rep 324 [Decision No. 11,961] ; Appeal of Smith, 37 Ed Dept Rep 583 [Decision No. 13.934]). Because it is well settled that "[c]ourts should defer to the interpretation given a statute by the agency charged with its enforcement unless the interpretation is either irrational, unreasonable or inconsistent with the governing statute ...." (Matter of Whitehall v. New York State Teachers' Retirement Sys., 142 AD2d 902, 903-904, aff'd, 73 NY 944)[FN7], the Court agrees with the interpretation accorded the statute and regulation by the Commissioner of Education. Accordingly, respondent's decision to deny bussing services to Danielle does not violate Education Law § 3635.

Finally, to the extent that petitioners are contending that respondent's dilatory denial of bussing services to Danielle (or its initiation of bussing services to Danielle and then its decision to deny such services several weeks into the school year) has caused petitioners to detrimentally change their position such that respondent should be estopped from changing its original stance of providing transportation to Danielle, that claim likewise fails. First, absent extraordinary circumstances not present here, "it is well settled that the doctrine of estoppel [*8]does not generally apply to a municipality acting in its governmental capacity ...." (Shawangunk Reserve Inc. v. County of Ulster, 284 AD2d 771, 772). Thus, "estoppel may not be invoked against a municipality to prevent it from discharging its statutory duties or for the purpose of preventing the municipality from rectifying an administrative error." (McGannon v. Board of Trustees for the Village of Pomona, 239 AD2d 392, 393; see also A.C. Transp., Inc. v. Board of Ed. of City of New York, 253 AD2d 330, 337, app. denied, 93 NY2d 808). Furthermore, it is well settled that the doctrine of estoppel may not be invoked to compel an illegal act. In this regard, courts consistently hold that "estoppel may not be invoked to prevent a municipality from disclaiming the unauthorized or unlawful acts of its officers ...." (Matter of Lincoln Ave. Assoc. v. Town of Islip, 96 AD2d 946, 947; see also Carbone v. Town of Bedford, 144 AD2d 420; Kelly v. The Chester Fire District, 95 AD2d 799, aff'd, 60 NY2d 660).

Because respondent's transportation policy tracks the regulation promulgated by the Commissioner of Education and does not violate the meaning of Education Law § 3635, the Court finds that there is a rational basis for respondent's transportation policy. Therefore, respondent's decision to deny bussing services to Danielle is not arbitrary, capricious or without basis in the law.

Based upon the foregoing; it is

ORDERED, that respondent's motion to dismiss the petition is granted and the petition is dismissed.

The foregoing constitutes the Decision, Order and Judgment of the Court.

Dated: White Plains, New York

November 28, 2005

/s/

__________________________________

HON. JONATHAN LIPPMAN, A.J.S.C.

To: Footnotes

Footnote 1:Petitioners allege that they detrimentally "relied upon the presumption that bussing would not be an issue. Specifically, Petitioner Laurence T. Lewitas ("Laurence"), is self-employed in New York City and typically leaves for his office between 6:30 a.m. and 7:30 a.m. In addition, due to the fact that the Petitioners are paying two private school tuitions, the Petitioners were planning for Petitioner Robin Lewitas ("Robin") to procure full-time employment. Furthermore, Petitioners have made substantial payments to Solomon Schecter for Danielle's tuition." (Verified Petition at ¶ 8). Petitioners cite to other detrimental impacts to the family in the event that the Court were to rule against them and the family was forced to switch schools for Danielle given her special needs and the family's desire to keep their daughters together at one school. (See Verified Petition at 20(b)(i)-(vii)).

Footnote 2:It is interesting to note that the transportation request, which is stamped August 29, 2005, has written across its top "must be 5 years of age by Dec 1st." (Lewitas Aff., Ex. F).

Footnote 3:Respondent explains that the policy to which it is referring is "Respondent School District's Board of Education's policy that children can only be admitted to kindergarten if they attain the age of 5 before December 1 and that nonpublic school students must meet this minimum age requirement for admission into kindergarten in order to receive transportation services," which respondent contends was "promulgated to conform with policy set by the Commissioner of Education." (Papa Reply Aff. at ¶ 4).

Footnote 4: Petitioners also suggest that: (1) the Commissioner of Education's regulation (8 N.Y.C.R.R. § 125.9), which limits legal enrollment for kindergartners enrolled in nonpublic schools to children to those who meet the age cut-off for kindergartners in the school districts in which they reside; and (2) the Commissioner of Education's decisions holding that districts are prohibited from providing transportation to kindergartners attending nonpublic schools who do not meet the age cut-off for kindergartners in the school districts in which they reside; violate the spirit and intent of Education Law § 3635, which petitioners contend has no age limitation.

Footnote 5: Cohn v. Board of Ed. of the Hammondsport Central School, 58 AD2d 977; Matter of Oliver v. Donovan, 32 AD2d 1036; Cottrell v. Board of Ed. of City of New York, 181 Misc 645, 650, aff'd, 267 AD 817, aff'd, 293 NY 792.

Footnote 6:To some extent, petitioners are also seeking a ruling from this Court concerning whether the regulation promulgated by the Commissioner of Education violates Education Law § 3635. Because the Commissioner of Education is not a party to this proceeding, the Court cannot address this issue. Nevertheless, the Court notes that it is well within the Commissioner of Education's authority to promulgate this regulation. Thus, "[s]ubject to the Legislature's control, the Board of Regents is constitutionally empowered to exercise legislative and policymaking functions with respect to the State's educational system (NY Const., art. IX, § 2; Education Law §§ 207). Statewide regulations are promulgated by the Commissioner of Education and approved by the Board of Regents (Education Law § 207)." (Campaign for Fiscal Equity, Inc. v. State of New York, 162 Misc 2d 493, 497-498, aff'd, 86 NY2d 307). The Commissioner of Education is "charged with the duty of enforcing all laws related to education in the State and executing educational policy. (Education Law, § 305). In carrying out those duties, it is within the commissioner's authority to reasonably interpret the regulations promulgated by him with the approval of the Board of Regents." (Matter of Bradford Central School Dist. v. Ambach, 56 NY2d 158, 165). While petitioners are correct in their position that administrative agencies " have no authority to create a rule out of harmony with the statute'" (Finger Lakes Racing Assn., Inc. v. New York State Racing & Wagering Bd., 45 NY2d 471, 480-481, quoting Matter of Jones v. Berman, 37 NY2d 42, 53), there is nothing present in the Commissioner of Education's regulation that conflicts with the import of Education Law § 3635.

Footnote 7:Indeed, the New York Court of Appeals has held that the Commissioner of Education's decisions involving his interpretations of Education Law statutes/regulations are entitled to great weight. (Matter of Lezette v. Board of Ed., Hudson City School District, 35 NY2d 272, 281-282).