| Matter of Lally v Johnson City Cent. Sch. Dist. |
| 2013 NY Slip Op 02311 [105 AD3d 1129] |
| April 4, 2013 |
| Appellate Division, Third Department |
| In the Matter of Thomas Lally,Respondent, v Johnson City Central School District et al.,Appellants. |
—[*1] Arthur P. Scheuermann, School Administrators Association, Latham (JenniferCarlson of counsel), for respondent.
Garry, J. Appeal from that part of an order of the Supreme Court (ReynoldsFitzgerald, J.), entered December 30, 2011 in Broome County, which, in a combinedproceeding pursuant to CPLR article 78 and action for declaratory judgment, deniedrespondents' motion to dismiss the second, third and fourth causes of action.
Petitioner was formerly employed by respondent Johnson City Central SchoolDistrict in the tenured position of Assistant Superintendent for Instruction and Personnel.In April 2010, a teacher filed a complaint against him. Petitioner was placed on paidadministrative leave and the parties attempted to negotiate a resolution, without success.He ultimately commenced this CPLR article 78 proceeding seeking reinstatement and aname-clearing hearing. Shortly thereafter, respondent Johnson City Central SchoolDistrict Board of Education voted to abolish the position that petitioner had held, and theparties agreed to adjourn the proceeding to permit petitioner to amend his petition to addclaims relative to this and other issues. Petitioner's amended petition added, as relevanthere, a claim for bad faith abolition of his position and a cause of action seeking damagesfor breach of contract. Respondents answered, asserting affirmative defenses andobjections in point of law, and thereafter filed a dual motion pursuant to CPLR 3211 (a)(7) and 3212 to dismiss the claims. Supreme Court treated respondents' objections inpoint of law as a CPLR 3211 motion to dismiss the causes of action for a name-clearinghearing and bad faith abolition of petitioner's position and denied dismissal of both,finding that petitioner had stated causes of action and that discovery was needed upon thebad [*2]faith claim. The court treated the dual motionrelative to the remaining claims as a motion for summary judgment, denied the motion asto the cause of action for breach of contract, and granted it as to other claims.[FN1]Respondents appeal.[FN2]
Initially, we find that petitioner's second cause of action seeking a name-clearinghearing should have been dismissed. This claim asserts due process violations basedupon respondents' failure to file charges or otherwise provide petitioner with anopportunity to challenge the claims against him. However, disciplinary charges were laterfiled against petitioner pursuant to Education Law § 3012 (2) (a), triggering thestatutory procedures that afford him the opportunity to confront his accusers and entitlehim to a hearing upon request (see Education Law § 3020-a). Petitionerhas thus received the relief to which he claimed to be entitled, and this claim is moot(see Matter of Saratoga Harness Racing v Corbisiero, 216 AD2d 776, 777-778[1995]; see also Matter of Hicks v Department of Educ. of City of N.Y., 2012NY Slip Op 31594[U], *5 [Sup Ct, NY County 2012]).[FN3]
We reject respondents' contention that Supreme Court erred in applying the standardsthat govern a motion to dismiss pursuant to CPLR 3211 (a) (7) to the claim for bad faithabolishment of the position. This claim seeks relief appropriate to CPLR article 78, andis properly treated as such (seegenerally Matter of Linney v City of Plattsburgh, 49 AD3d 1020 [2008]; Matter of Lamb v Town ofEsopus, 35 AD3d 1004 [2006]). Respondents opposed this claim in the form ofobjections in point of law in their answer; their subsequent motion pursuant to CPLR3211 and 3212 merely contended that the previous submission supplied an adequatebasis for dismissal of the bad faith claim. In a CPLR article 78 proceeding, objections inpoint of law may be raised either through a pre-answer motion to dismiss or—ashere—in the verified answer (see CPLR 7804 [f]). Such objections areappropriately afforded review similar in nature to that applied to defenses raised in apre-answer motion to dismiss pursuant to CPLR 3211 (a). [*3]Here, Supreme Court properly addressed the objections inpoint of law by determining whether summary disposition of the claim was appropriate,employing those standards—that is, the court considered only the face of thepetition and any factual affidavits submitted by petitioner to remedy defects in thepleading, deemed the petition's allegations to be true and ignored respondents'submissions (see Matter ofAlbany Law School v New York State Off. of Mental Retardation & Dev.Disabilities, 81 AD3d 145, 148 [2011], mod 19 NY3d 106 [2012]; Matter of Green HarbourHomeowners' Assn. v Town of Lake George Planning Bd., 1 AD3d 744, 745[2003]).
A school district may abolish a position, even when this results in the discharge of atenured employee, so long as it "has made a good faith determination based on economicconsiderations" (Matter of Gross v Board of Educ. of Elmsford Union Free SchoolDist., 78 NY2d 13, 16-17 [1991]; see Matter of Cohen v Crown Point Cent.School Dist., 306 AD2d 732, 733 [2003]). To demonstrate that his position wasabolished in bad faith, petitioner was required to show that the position was noteliminated for bona fide reasons, that savings were not accomplished or that areplacement employee was hired (see Matter of Linney v City of Plattsburgh, 49AD3d at 1021; Matter of Mucci v City of Binghamton, 245 AD2d 678, 679[1997], appeal dismissed 91 NY2d 921 [1998], lv denied 92 NY2d 802[1998]). Petitioner initially alleged that his position was not abolished for bona fidereasons but in retaliation against him for commencing the CPLR article 78 proceedingand as a pretext to gain his termination without filing disciplinary charges, that theposition was abolished only 10 days after he filed his initial petition pursuant to CPLRarticle 78, and that respondent Superintendent had previously suggested abolishing otheremployees' positions for similarly improper reasons. Petitioner further asserted thatrespondents had not considered or discussed abolishing his position as a cost-savingmeasure before he filed his petition, that his position was the only one singled out forabolition among more than 200 employees of the school district, and that no otherpositions were abolished in the middle of the school year. Thus, he did not, asrespondents contend, rely solely upon the temporal proximity between the filing of hispetition and the abolition of his position to establish bad faith (compare Matter ofWipfler v Klebes, 284 NY 248, 257 [1940]); instead, he contended that this temporalproximity was sufficient to suggest bad faith when considered in the light of his extendedprevious suspension, respondents' failure to file disciplinary charges and the othersurrounding circumstances. We agree with Supreme Court that these specific andnonconclusory assertions, when deemed to be true for this purpose, were sufficient toallege that the abolition of his position "was motivated by reasons other than a desire topromote institutional efficiency and economy" and thus state a cause of action(Matter of Gagnon v Board of Educ. of Manhasset Union Free School Dist., 119AD2d 674, 675 [1986]).
Supreme Court found that further discovery was required before the question ofrespondents' bad faith could be resolved. As respondents contend, pretrial disclosure isavailable in summary proceedings only by leave of court (see CPLR 408), andleave is granted only where there is a demonstrated need (see Matter of Town ofPleasant Val. v New York State Bd. of Real Prop. Servs., 253 AD2d 8, 15 [1999]).We do not find that the court abused its "considerable discretion" in determining herethat further disclosure was appropriate (Matter of Grossman v McMahon, 261AD2d 54, 57 [1999]; see Matter of Pignato v City of Rochester, 288 AD2d 825,825-826 [2001], appeal dismissed 97 NY2d 725 [2002], lv denied 98NY2d 604 [2002]).
The remaining plenary cause of action for breach of contract alleges that respondentsbreached petitioner's employment contract by abolishing his position. Supreme Courtfound that this cause of action hinges upon the resolution of the bad faith abolition claim,and there is no [*4]disagreement with this aspect of thedecision upon this appeal.
Mercure, J.P., Rose and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied respondents' motion todismiss the second cause of action; said claim dismissed; and, as so modified, affirmed.
Footnote 1: The amended petitionalso asserted claims for abuse of process and negligent and intentional infliction ofemotional distress, based upon the disclosure of certain confidential information;dismissal of these claims and petitioner's claim for reinstatement is not at issue on thisappeal.
Footnote 2: There is no appeal as ofright in this nonfinal CPLR article 78 proceeding (see CPLR 5701 [b]; Matter of Pettersen v Town of FortAnn, 72 AD3d 1322, 1323 [2010]). In the interest of judicial economy, andlacking any objection, we treat the notice of appeal as a request for permission to appeal,and grant the request (seeMatter of Castro v Fischer, 81 AD3d 1062, 1063 [2011]).
Footnote 3: Name-clearing hearingsare ordinarily provided to probationary employees and others who lack the statutory dueprocess protections of tenured employees (see e.g. Matter of Swinton v Safir, 93NY2d 758, 763 n [1999]; Wilcox v Newark Val. Cent. School Dist., 74 AD3d 1558,1564 [2010]). As these statutory protections have now been invoked, we need not decidethe effect of petitioner's tenure upon this requested relief.