Board of Ed., Union Free School Dist. No. 6, Town of Babylon, Suffolk County v. Board of Co-op. Educational Services, Third Supervisory Dist., Suffolk County

• Decision Date: 17 January 1964
• Citation: 246 N.Y.S.2d 48,41 Misc.2d 699
• Parties: BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT NO. 6, TOWN OF BABYLON, SUFFOLK COUNTY, and Town of Oyster Bay, Nassau County, New York v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES, THIRD SUPERVISORY DISTRICT, SUFFOLK COUNTY, New York.
• Court: New York Supreme Court

Page 48

246 N.Y.S.2d 48

41 Misc.2d 699

BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT NO. 6, TOWN OF BABYLON, SUFFOLK COUNTY, and Town of Oyster Bay, Nassau County, New York v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES, THIRD SUPERVISORY DISTRICT, SUFFOLK COUNTY, New York.

Supreme Court, Special Term, Suffolk County, Part II.

Jan. 17, 1964.

Leroy Van Nostrand, Jr., Amityville, for petitioner.

Robert B. Loew, Huntington Station, for respondent.

JACK STANISLAW, Justice.

In this proceeding instituted under Article 78 of the former Civil Practice Act, petitioner Board of Education, Union Free School District No. 6, Babylon (hereinafter sometimes referred to as 'UFSD') asks direction that respondent refund certain budgetary surplus pro rata to itself and others. In furtherance of the relief demanded the respondent Board of Cooperative Education Services, Third Supervisory District (hereinafter sometimes referred to as 'BCES') would also be directed to dispose of certain real property and cancel its lease-purchase agreement for the construction of a vocational school. Respondent has moved to dismiss the petition as being both insufficient in law and untimely.

Petitioner is one of 15 component school districts in the Third Supervisory District. Respondent BCES was organized pursuant to the provisions of Section 1958(1) of the Education Law to undertake and carry out a program of shared educational services in approved special subjects for all of the component districts. The BCES operates on an annual budget which is supported by pro-rating the member districts according to the ratio of valuation in each district to the total valuation of all the participating districts. These apportioned amounts are levied and collected by respondent and prior to the 1961-62 budget year, any unused portion of the budget was proportionately refunded at the end of the period. The 1961-62 budget was regularly adopted, but no refund was made though apparently a surplus should have been available.

The facts bearing upon the issues presented are as follows: on December 12, 1962, the BCES, composed of five persons elected by the member districts, unanimously resolved to purchase land for the construction of a vocational school building. An 'Area Technical Center' (vocational school) would be housed here for the joint benefit of all component districts. A parcel was located and acquired by the use of otherwise surplus funds in the budget. Arrangements were made for construction and presumably the school is even now in operation. At the close of the 1961-62 budget year the approximately $60,000 used for this purchase was of course not available to be refunded. Moreover, the amount had never appeared in the budget for use in this manner and its subsequent availability for refund was eliminated. Petitioner bases its claim upon the nonreflection of expenditure and the alleged unauthorized use of surplus, all of which left it without an anticipated recoupment of monies. Issue is collaterally taken with the legality and propriety of respondent's purchase of the land, per se.

By letter dated June 17, 1963 UFSD demanded refund of its proportionate share of ostensibly available budget surplus for the 1961-62 fiscal year. The instant proceeding was commenced on or about July 5, 1963. Therefore, respondent concedes the action to be timely, but only with respect to the refund question, having been instituted within four months of petitioner's demand for relief by way of refund on June 17 (Civ.Prac.Act, § 1286). However, the BCES argues that as to its acts resulting in the erection of the vocational school, since more than four months elapsed from the time final arrangements were made for such school, those aspects of the petition are not timely and cannot be raised in this action. However, if the respondent had no power to act as it did in the first place the problem would now be subject to consideration regardless of the four month limitation period: when action is taken by an administrative body purportedly in excess of its jurisdiction, statutory time limits are not available as a shield against judicial scrutiny. Foy v. Schechter, 1 N.Y.2d 604, 612, 154 N.Y.S.2d 927, 933, 136 N.E.2d 883, 887; Streeter v. Cowle, 6 A.D.2d 811, 175 N.Y.S.2d 225; Mandel v. Waxman, 35 Misc.2d 1085, 231 N.Y.S.2d 974. However, the unavailability of a defense of statutory limitation of time is predicated on there being demand made for relief from the alleged unjustified acts. That is, 'Attempted action of a public body without power is void and may be attacked for want of jurisdiction at any time when an attempt is made to enforce claims founded upon such action.' (Matter of Long Island Railroad Company v. Hylan, 240 N.Y. 199, 208, 148 N.E. 189, 192. See also: People ex rel. New York Central Railroad Company v. Limburg, 283 N.Y. 344, 28 N.E.2d 865; Williams v. Morton, 297 N.Y. 328, 79 N.E.2d 428.) Failure of the BCES to make the refund herein taken together with those acts leading to the expenditure thereof may be viewed as the affirmative 'enforcement' of its actions so as to enable petitioner to now dispute those actions. Unless this be so held an action conceivably void could not be reviewed at all. Compare, Application of Gallo, Sup., 154 N.Y.S.2d 171, revd. 4 A.D.2d 505, 167 N.Y.S.2d 516, affd. Gallo v. Kennedy, 4 N.Y.2d 949, 175 N.Y.S.2d 822, 151 N.E.2d 619, a proceeding to compel performance of a legal duty as opposed to one taken to prohibit further action without jurisdiction.

Appeal by petitioner to the commissioner of education for relief might be available in this dispute (Education Law, §§ 310, 2037), as this court has previously acknowledged (Levert v. Gavin, 39 Misc.2d 569, 241 N.Y.S.2d 300). However, the issues here are of first impression with respect to the interpretation to be given parts of section 1958 of the Education Law. Both the State Education Department and the Comptroller have rendered diametrically opposed opinions on the subject of surplus and its use. Where counsel to the commissioner of education has indicated a position the court will not rigidly insist upon the futile gesture of obtaining an already available determination which is reviewable in any event. In a broader sense, the opinion of counsel referred to can be considered almost equivalent to a proceeding under section 310 of the Education Law in the circumstances present in this situation.

The proceeding is timely and it now remains to examine the merits of petitioner's theory. The BCES contends its procedures were taken in legitimate exercise of statutory powers, from the resolution to...