| Eldridge v Carmel Cent. School Dist. Bd. of Educ. |
| 2011 NY Slip Op 02620 [82 AD3d 1147] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Paul Eldridge, Respondent, v Carmel Central SchoolDistrict Board of Education et al., Appellants. |
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In an action to recover sums illegally paid pursuant to Civil Service Law § 102 (2), thedefendants appeal, as limited by their brief, from so much of an order of the Supreme Court,Putnam County (O'Rourke, J.), entered December 2, 2009, as denied those branches of theirmotion which were pursuant to CPLR 3211 (a) (1), (7), and, in effect, (5), to dismiss thecomplaint.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against the defendant Carmel Central School District Board ofEducation, and substituting therefor a provision granting that branch of the motion, and (2) bydeleting the provision thereof denying that branch of the defendants' motion which was, in effect,pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, and substituting therefora provision granting that branch of the motion to the extent of dismissing so much of thecomplaint as was based on acts occurring prior to June 2, 2006, and otherwise denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The plaintiff, as Personnel Officer of Putnam County and Personnel Director for the PutnamCounty Personnel Department, commenced the instant action on June 2, 2009, pursuant to CivilService Law § 102 (2), to recover certain sums allegedly illegally paid by the defendantCarmel Central School District Board of Education (hereinafter the Board of Education), as wellas the following defendants in their individual capacities: Richard Kreps, as president of theBoard of Education, Greg Riley, as vice-president of the Board of Education, Jennifer Dougherty,as trustee of the Board of Education, James MacDonald, as trustee of the Board of Education,Heyam Nesheiwat, as trustee of the Board of Education, Steve Port, as trustee of the Board ofEducation, Marilyn Terranova, as the former superintendent of schools, Ronald Wilson, as theformer assistant superintendent for business and the interim superintendent of schools, EricStark, as the assistant superintendent for business, and Linda Haywood, as assistant businessmanager (hereinafter collectively the individual defendants). The plaintiff alleged that thedefendants illegally paid or authorized payment of salary or compensation to nonparty JosephGramando, totaling approximately[*2]$233,245, from February10, 2006, through October 15, 2008. Pursuant to Civil Service Law § 102 (2), the plaintiffsought to recover these funds from the defendants and to deposit them into the treasury ofPutnam County. The defendants moved to dismiss the complaint, inter alia, pursuant to CPLR3211 (a) (1), (7), and, in effect, (5). The Supreme Court denied the motion in its entirety.
The Supreme Court erred in denying that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against the Board ofEducation. Pursuant to Civil Service Law § 102 (2), any sums which are paid in violationof Civil Service Law § 100 "may be recovered from any officer or officers by whom theperson or persons receiving the same were appointed in violation of the provisions of law. . . or any officer signing or countersigning or authorizing the signing orcountersigning of any warrant for the payment of the same" (Civil Service Law § 102 [2]).As the Board of Education was not such an officer, the Supreme Court should have granted thatbranch of the defendants' motion which was to dismiss the complaint for failure to state a causeof action insofar as asserted against the Board of Education.
However, the Supreme Court properly denied that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against theindividual defendants on the ground that they were not proper parties under Civil Service Law§ 102 (2). Contrary to the defendants' contention, the complaint sufficiently alleged thatthe defendants Kreps, Riley, Dougherty, MacDonald, Nesheiwat, Port, and Shilling, as individualmembers of the Board of Education, were "officers by whom [nonparty Joseph Gramando] w[as]appointed in violation of the provisions of law and of the rules made in pursuance of law" (CivilService Law § 102 [2]). Additionally, the complaint sufficiently alleged that the defendantsTerranova, Wilson, Stark, and Haywood were "officer[s] signing or countersigning or authorizingthe signing or countersigning of any warrant for the payment of" salary or compensationdistributed to nonparty Joseph Gramando contrary to the provisions of Civil Service Law §100 (Civil Service Law § 102 [2]).
Furthermore, the Supreme Court properly denied those branches of the defendants' motionwhich were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst the individual defendants on the ground that the plaintiff failed to notify "the appropriatedisbursing and auditing officers" within the meaning of Civil Service Law § 100 (1) (a)that Gramando was being employed in violation of the law. Contrary to the defendants'contention, notification to "the appropriate disbursing and auditing officers" that a person hasbeen "promoted, transferred, assigned, reinstated or otherwise employed" in violation of the lawis not a condition precedent to an action to recover sums illegally paid under Civil Service Law§ 102 (2) where, as here, the plaintiff has alleged that the salary and compensationdisbursed to Gramando was paid and approved without proper certification of the payroll by thecivil service department or municipal commission having jurisdiction (Civil Service Law §100 [1] [a]; see Civil Service Law § 102 [2]). Moreover, the defendants failed tosubmit documentary evidence conclusively establishing that the salary and compensationallegedly paid to Gramando in violation of the law was properly certified by the civil servicedepartment or municipal commission having jurisdiction, as required by Civil Service Law§ 100 (1) (a).
The Supreme Court also properly denied that branch of the defendants' motion pursuant toCPLR 3211 (a) (7) which was to dismiss the complaint insofar as asserted against the individualdefendants for failure to timely serve a notice of claim. Contrary to the defendants' contention, anaction commenced pursuant to Civil Service Law § 102 (2) is an action "to vindicate apublic interest" to which the notice of claim requirement in Education Law § 3813 (1) doesnot apply (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York StateHuman Rights Appeal Bd., 35 NY2d 371, 379-380 [1974]; see Matter of Yagan vBernardi, 256 AD2d 1225 [1998]; Matter of Mary's Bus Serv. v Rondout Val. Cent.School Dist., 238 AD2d 829, 831 [1997]; Matter of Rampello v East Irondequoit Cent.School Dist., 236 AD2d 797 [1997]; cf. Mills v County of Monroe, 59 NY2d 307,312 [1983], cert denied 464 US 1018 [1983]; Cavanaugh v Board of Educ. ofHuntington Union Free School Dist., 296 AD2d 369 [2002]; Doyle v Board of Educ. ofDeer Park Union Free School Dist., 230 AD2d 820 [1996]; Matter of Saranac Lake Cent.School Dist. v New York State Div. of Human Rights, 226 AD2d 794 [1996]; Matter ofDeposit Cent. School Dist. v Public Empl. Relations Bd., 214 AD2d 288 [1995]).[*3]
The Supreme Court properly denied that branch of thedefendants' motion which was, in effect, pursuant to CPLR 3211 (a) (5), to dismiss the complaintin its entirety as barred by the one-year statute of limitations in Education Law § 3813(2-b). "All of the public policy considerations for finding that Education Law § 3813'snotice of claim requirement is inapplicable to [this action] are equally valid with respect to theStatute of Limitations set forth in [section 3813 (2-b)]" (Matter of Cayuga-OnondagaCounties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 403 [1996]; but see Boardof Educ. of Katonah-Lewisboro School Dist. v Board of Educ. of Carmel Cent. School Dist.,174 AD2d 704 [1991]). "[I]n the absence of a limitation period specifically governing the[action] at issue, 'it is necessary to examine the substance of that action to identify therelationship out of which the claim arises and the relief sought' " (Hartnett v New York CityTr. Auth., 86 NY2d 438, 443-444 [1995], quoting Solnick v Whalen, 49 NY2d 224,229 [1980]). As this is "an action to recover upon a liability, penalty or forfeiture created orimposed by statute" (CPLR 214 [2]), a three-year statute of limitations is applicable (seeCPLR 214 [2]; Espie v Murphy, 35 AD3d 348 [2006]; Charleson v City of LongBeach, 297 AD2d 775 [2002]; Shechtman v Sverdrup & Parcel Consultants, 226AD2d 268 [1996]). Accordingly, the plaintiff's action to recover sums allegedly illegally paidshould be limited to the money paid to Gramando on or after June 2, 2006 (see GeneralConstruction Law § 20).
The defendants' contention that the first cause of action insofar as asserted against theindividual defendants should be dismissed pursuant to CPLR 3211 (a) (1) and (7) on the groundthat any sums paid on or before April 9, 2007, are unrecoverable because the plaintiff expresslyextended Gramando's provisional appointment until that date is without merit. Contrary to thedefendants' contention, the plaintiff is not required, nor does he have the authority, to extend orterminate provisional appointments. It is the obligation of the appointing authority to terminateall provisional appointments "within two months following the establishment of an appropriateeligible list for filling vacancies" (Civil Service Law § 65 [3]). The power of the civilservice department and municipal commission lies in their ability to withhold certification "froman entire payroll or from any item or items therein" (Civil Service Law § 100 [1] [a]). Asthe allegations in the complaint were sufficient to establish that the individual defendantscontinued to pay and approve salary and compensation to Gramando after the expiration of hisprovisional appointment and without proper certification of the payroll, the Supreme Courtproperly denied that branch of the defendants' motion which was to dismiss the first cause ofaction insofar as asserted against the individual defendants pursuant to CPLR 3211 (a) (7).Additionally, the defendants failed to submit documentary evidence conclusively establishingthat the payments made to Gramando on or before April 9, 2007, were properly certified asrequired by Civil Service Law § 100 (1) (a). Accordingly, the Supreme Court properlydenied that branch of the defendants' motion which was to dismiss the first cause of actioninsofar as asserted against the individual defendants pursuant to CPLR 3211 (a) (1).
The defendants' remaining contention is without merit. Mastro, J.P., Skelos, Balkin andRoman, JJ., concur.