Buchko v. Board of Ed. of Connetquot Cent. School Dist. No. 7

• Decision Date: 24 April 1964
• Parties: Thomas M. BUCHKO et al., Plaintiffs, v. BOARD OF EDUCATION OF CONNETQUOT CENTRAL SCHOOL DISTRICT #7, Defendant.
• Court: New York Supreme Court

Page 823

249 N.Y.S.2d 823

43 Misc.2d 43

Thomas M. BUCHKO et al., Plaintiffs, v. BOARD OF EDUCATION OF CONNETQUOT CENTRAL SCHOOL DISTRICT #7,

Defendant.

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

April 24, 1964.

Caldiera & Rosenberg, Hauppauge, for plaintiffs.

O'Rourke & Jordan, Central Islip, for defendant.

HENRY TASKER, Justice.

Plaintiffs, taxpayers and voters residing in Central School District Number 7, Town of Islip, bring this triparty action for declaratory judgments, an injunction and other relief. Defendant Board of Education moves to dismiss the three causes of action set forth in the complaint, pursuant to CPLR Rule 3211(a), 2, 5 and 7. Plaintiffs cross move for summary judgment pursuant to CPLR Rule 3211(c).

The first cause of action alleges that Central School District No . 7, formerly Consolidated Union Free School District No. 7, was originally composed of two separate union free school districts which were consolidated in May of 1960, pursuant to Education Law, §§ 1510-1513. On June 3, 1960, the Commissioner of Education entered an order pursuant to Education Law, § 1801, laying out the territory of the newly consolidated union free school district as a central school district; thereafter, Central School District Number 7 was duly organized. Plaintiffs contend that the organization of the newly consolidated union free school district into a central school district within a month after consolidation violates Education Law, § 1523, subd. 5 and that the centralization meeting of June 23, 1960 was not organized as provided by law nor was the requisite notice thereof given. They ask for a declaratory judgment to this effect.

The second cause of action alleges that the consolidation of the two former union free school districts had no legal or proper purpose; that the consolidated district was formed only for the purpose of consolidating the debt burdens of both districts (Education Law, §§ 1517, 1518); and that the taxpayers and voters of former district number 7 were deprived of property rights in violation of the federal and state constitutions and have been subjected to illegal taxes not levied in accordance with Education Law, § 1804, subds. 5 and 6. Plaintiffs pray for a judgment to this effect, and request the appointment of a referee pursuant to CPLR § 4317 to make an allocation of the property rights and debt burdens of the former districts.

The third cause of action alleges that defendant Board of Education has discontinued the use of certain elementary school buildings in the centralized district and is transferring and transporting pupils among the buildings in the former separate districts, in violation of Education Law, § 1805.

A declaratory judgment of illegality is sought, as well as an order enjoining such illegal transfers of pupils.

Defendant's motion to dismiss pursuant to CPLR Rule 3211(a) 2 is based on the proposition that the Court is without jurisdiction of the subject matter of the claims herein by reason of Education Law, § 2037. Defendant also contends, pursuant to CPLR Rule 3211(a) 7, that the within causes of action for declaratory judgments do not lie, because of the availability of remedies under Education Law, § 2037, and also former Civil Practice Act, Article 78 (CPLR Article 78).

With respect to the first and second causes of action, both the claim of want of jurisdiction over the subject matter and the claim that actions for declaratory judgments do not lie, are without substance, except as applicable to one of the grounds set forth in the first cause of action. An appeal to the Commissioner of Education is, in the first instance, the exclusive remedy where the validity of a district meeting or the proceedings thereat are in dispute, (Education Law, § 2037; Finley v. Spaulding, 274 App.Div. 522, 85 N.Y.S.2d 116; Markert v. Wilson, 284 App.Div. 1086, 135 N.Y.S.2d 807; Johnson v. Parsons, 207 Misc. 107, 135 N.Y.S.2d 672, aff'd 285 App.Div. 601, 139 N.Y.S.2d 676; Matter of Colson v. Allen, 285 App.Div. 797, 140 N.Y.S.2d 837; Guariglia v. De Furio, 34 Misc.2d 200, 228 N.Y.S.2d 697; French v. Pospisil, 39 Misc.2d 126, 240 N.Y.S.2d 353). Accordingly, as to the allegations of paragraph 'Eighth' of the complaint, this Court is without jurisdiction in the first instance to pass on such contention.

Notwithstanding the foregoing, where the questions presented involve violation of an express statute, as claimed in the first cause of action, (Cottrell v. Board of Education of City of New York, 181 Misc. 645, 42 N.Y.S.2d 472, aff'd 267 App.Div. 817, 47 N.Y.S.2d 106, aff'd 293 N.Y. 792, 59 N.E.2d 32; Bramley v. Miller, 243 App.Div. 220, 276 N.Y.S. 812, aff'd 270 N.Y. 307, 1 N.E.2d 111; City of New York v. Porter, 274 App.Div. 832, 80 N.Y.S.2d 667, aff'd 299 N.Y. 587, 86 N.E.2d 108; Corbett v. Union Free School Dist. #21, Hempstead, N. Y., Sup., 102 N.Y.S.2d 924; cf. Leone v. Hunter, 21 Misc.2d 750, 191 N.Y.S.2d 334; cf. Pacos v. Hunter, 29 Misc.2d 404, 218 N.Y.S.2d 354, aff'd 14 A.D.2d 990; cf. French v. Pospisil, supra) or where questions of the validity or the constitutionality of statutes, or of acts of administrative officials, are raised (Johnson v. Parsons, supra; Monaco v. Allen, 5 A.D.2d 743, 169 N.Y.S .2d 118; cf. Bunis v. Conway, 17 A.D.2d 207, 234 N.Y.S.2d 435), direct resort may be had to judicial remedies, specifically to an action for a declaratory judgment. Both consolidation and centralization involve multiple acts on the part of the Commissioner of Education, the District Superintendent of Schools and the boards and electors of the school districts. An action for declaratory judgment is the appropriate vehicle for assertion of plaintiffs' rights and, indeed, perhaps the only method of bringing the entire controversy before the courts, (Gwynne v. Board of Education of Union Free School Dist. No. 3, 259 N.Y. 191, 181 N.E. 353; Cottrell v. Board of Education of City of New York, supra; Levert v. Central School District No. 6, Town of Huntington, Suffolk County, 24 Misc.2d 833, 201 N.Y.S.2d 6 and 10 App.Div.2d 975, 202 N.Y.S.2d 248.

With respect to the third cause of action, it is settled that the Court has jurisdiction of the subject matter and that an action for a declaratory judgment is the proper remedy. (Levert v. Central School District No. 6, 10 A.D.2d 975, 202 N.Y.S.2d 248 and, on remand, 24 Misc.2d 833, 204 N.Y.S.2d 6). The motion pursuant to CPLR Rule 3211(a), 2 must be granted, as to the first cause of action, to the extent indicated, and otherwise denied.

Turning to defendant's attack upon the complaint on the ground of insufficiency, the remaining gravamen of the first cause of action is that centralization followed too hastily upon consolidation's heels in violation of Education Law, § 1523, subd. 5 . The May 1960 consolidation of the two existing districts was had pursuant to Education Law, § 1510 through § 1513. A careful reading and comparison of the provisions of the cited sections shows clearly that the procedures are distinct and separate. In a well reasoned opinion dealing with the application of former § 1524, Education Law, the Commissioner of Education pointed up the disparity between §§ 1510-1513 and §§ 1522-1523 and carefully analyzed the legislative history of each group of sections, (Appeal of Capossela, 74 State Dept. (Ed.Rep. 8 (1953)). The cited case is determinative of plaintiffs' contention. Section 1523, subd. 5 is inapplicable. The first cause of action is insufficient as a matter of law, and is accordingly dismissed.

As to the second cause of action, the Education Law does not prohibit consolidation of two existing districts immediately prior to centralization. There is no illegality per se in such procedure (see: Board of Education of Union Free School Dist. No. 1 of Towns of Bethlehem, Coeymans and New Scotland v. Wilson, 303 N.Y. 107, 100 N.E.2d 159). The conclusory allegations of unconstitutionality and illegality are insufficient (Board of Education of Union Free School Dist. No. 3 of Town of Oyster Bay, Nassau County v. Allen, 6 A.D.2D 316, 177 N.Y.S.2d 169, aff'd 6...