| Matter of Verdon v Dutchess County Bd. of Coop. Educ.Servs. |
| 2008 NY Slip Op 00704 [47 AD3d 941] |
| January 29, 2008 |
| Appellate Division, Second Department |
| In the Matter of Andrew J. Verdon, Jr.,Appellant, v Dutchess County Board of Cooperative Educational Services et al.,Respondents. |
—[*1] Donoghue, Thomas, Auslander & Drohan, LLP, Hopewell Junction, N.Y. (James P. Drohanand Neelanjan Choudury of counsel), for respondents.
In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondent DutchessCounty Board of Cooperative Educational Services to reinstate the petitioner to his formerposition, the petitioner appeals from an order and judgment (one paper) of the Supreme Court,Dutchess County (Brands, J.), dated June 7, 2006, which granted the motion of the respondentDutchess County Board of Cooperative Educational Services to dismiss the petition, anddismissed the proceeding.
Ordered that the order and judgment is reversed, on the law, with costs, the motion to dismissis denied, and the petition is reinstated.
The petitioner was hired by the respondent Dutchess County Board of CooperativeEducational Services (hereinafter BOCES) in 1995 and was awarded tenure on or about July 1,1999 as the Supervisor for Instructional Services (and/or Educational Resources). In a letter datedMarch 3, 2005, the District Superintendent of BOCES reprimanded the petitioner for allegedlyallowing 21 test booklets to be lost as a result of "considerable dereliction of duty on [thepetitioner's] part." The letter demanded that the petitioner promptly write specific security plansfor the scoring process for implementation in 2006 and opined that, "[p]erhaps the better part ofwisdom would be for you to seek employment elsewhere." In a letter dated October 7, 2005, theDistrict Superintendent notified the petitioner that his position was being eliminated, effectiveNovember 1, 2005.[*2]
By letter dated October 25, 2005, Arthur P. Scheuermann,the Director of Legal Services for the School Administrators Association of New York State(hereinafter the Association), notified L. Daniel Carlin, Assistant Superintendent of BOCES, thatthe Association was representing the petitioner in objecting to the abolition of his position on thegrounds that he did not receive adequate notice, that the abolition was motivated by bad faithwhen attempts to coerce him to resign failed, and that the employment of another employee withless seniority should have been terminated instead of the petitioner.
In a document dated October 28, 2005, and entitled "Position Elimination Rationale," Carlinexplained that the petitioner's position was being eliminated because the 2005-2006 budget forhis department, school improvement services, faced a shortfall of $44,000 due to the withdrawalof one participating school district's subscription for services.
Thereafter, the petitioner commenced the instant proceeding, claiming that the purportedeconomic rationale of BOCES for abolishing his position was created as a pretext in order toterminate him for "performance/personality/discipline reasons" without providing him with thestatutory due process to which he was entitled pursuant to Education Law § 3020-a or theseniority and recall rights to which he was entitled pursuant to Education Law § 3013 (2)and (3). BOCES moved to dismiss the petition on the ground, inter alia, that the issues regardingdue process, seniority, and recall rights should be remitted to the Commissioner of Educationunder the doctrine of primary jurisdiction. The Supreme Court granted the motion and dismissedthe proceeding.
As the petitioner correctly contends, the Supreme Court erred in dismissing the proceedingbased on the doctrine of primary jurisdiction. "The doctrine of primary jurisdiction provides thatwhere the courts and an administrative agency have concurrent jurisdiction over a disputeinvolving issues beyond the conventional experience of judges . . . the court willstay its hand until the agency has applied its expertise to the salient questions" (Flacke vOnondaga Landfill Sys., 69 NY2d 355, 362 [1987] [internal quotation marks omitted]). "Thedoctrine . . . 'applies where a claim is originally cognizable in the courts and comesinto play whenever enforcement of the claim requires the resolution of issues which, under aregulatory scheme, have been placed within the special competence of an administrative body; insuch a case the judicial process is suspended pending referral of such issues to the administrativebody for its views' " (Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 156[1988], quoting United States v Western Pacific R. Co., 352 US 59, 64 [1956]).
In the instant case, the petitioner's primary claim, that the termination of his employment wasin bad faith, and that the purported economic rationale of BOCES was a subterfuge to deprivehim of the statutory protections to which he was entitled, was not an issue within the specialcompetence of the Commissioner of Education, and therefore, the Supreme Court should haveretained jurisdiction to decide that claim (see Cohen v Crown Point Cent. School Dist.,306 AD2d 732 [2003]; Matter of Mucci v City of Binghamton, 245 AD2d 678, 679[1997]; Matter of Terrible v County of Rockland, 81 AD2d 837, 838 [1981]; Matterof Weimer v Board of Educ. of Smithtown Cent. School Dist., No. 1, 74 AD2d 574, 575[1980]). If the Supreme Court ultimately determines that the petitioner's position was abolishedin bad faith, he is entitled to reinstatement. If the Supreme Court ultimately determines that thepetitioner's position was not abolished in bad faith, the subsidiary issues of seniority and recallrights become relevant, and would be proper for referral to the Commissioner under the primaryjurisdiction doctrine. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.