O'Connor v. Board of Ed. of Central School Dist. No. 1 of Village of Ilion and Towns of German Flatts, et al.

• Decision Date: 18 December 1970
• Citation: 65 Misc.2d 40,316 N.Y.S.2d 799
• Parties: Application of Kevin O'CONNOR, an Infant, by his mother, Ann O'Connor, Petitioner, For a Judgment and Order pursuant to Article 78 of CPLR, v. The BOARD OF EDUCATION OF the CENTRAL SCHOOL DISTRICT #1 OF the VALLAGE OF ILION AND the TOWNS OF GERMAN FLATTS, ET AL., and Joseph Sorge, Respondents. To Review the Determination and Decision.
• Court: New York Supreme Court

Page 799

316 N.Y.S.2d 799

65 Misc.2d 40

Application of Kevin O'CONNOR, an Infant, by his mother, Ann

O'Connor, Petitioner, For a Judgment and Order

pursuant to Article 78 of CPLR, v. The BOARD OF EDUCATION OF the CENTRAL SCHOOL DISTRICT #1 OF

the VALLAGE OF ILION AND the TOWNS OF GERMAN

FLATTS, ET AL., and Joseph Sorge, Respondents.

To Review the Determination and Decision.

Supreme Court, Herkimer County.

Dec. 18, 1970.

Fred J. O'Donnell, Ilion, for petitioner.

George H. Getman, Ilion, for respondents.

DECISION

RICHARD J. CARDAMONE, Justice:

The petitioner, a former high-school athlete attending Ilion Central School, seeks by this Article 78 Proceeding to obtain his block 'I' letter for football and wrestling for the year 1969--1970 revoked by the respondent Board of Education.

Kevin O'Connor, an eighteen-year old resident of the Village of Ilion, was a participating member of the Ilion Central High School football and wrestling teams and earned his 'block letter' in these sports during the fall of 1969 and winter of 1970. During the month of April, 1970, after the football and wrestling seasons had ended, the petitioner attended a bowling party for members of the Knights of Columbus, of which he was a member, and while sitting at a table eating sandwiches and drinking a glass of beer (he being eighteen years old at the time) a high-school coach who was also present told him that he was going to have to turn him in.

Subsequently a letter was received by the petitioner's parents on June 1, 1970 which stated that as a result of this incident at the Knights of Columbus, Kevin had forfeited his awards in football and wrestling according to Rule 5.2 of the Code of Conduct governing Ilion High School Athletic Teams. Rule 5.2 provides that smoking and drinking are undesirable habits for high-school athletes. It further provides that during the sports season any member may be subject to dismissal for violation of this rule and states that if '* * * at any time during the school year he flagrantly violates this rule, even though he is not then on an athletic squad, his letter will be forfeited'.

It is the petitioner's contention that there was no flagrant violation of this rule and that, further, the action forfeiting his varsity letters was beyond the legal powers of the School Board and, finally, that the petitioner was not accorded any opportunity to be heard by the respondent.

Petitioner has instituted this Article 78 Proceeding to obtain review rather than by means of an appeal to the Commissioner of Education which is, in certain cases, considered the proper avenue of appeal and one which parents are constrained to employ (Oliver v. Donovan, 32 A.D.2d 1036, 303 N.Y.S.2d 779(6) 1937 (Second Dept. 1969)). In what cases, if any, remedy by appeal to the Commissioner of Education (Education L., sec. 310) must be exhausted before redress may be sought from the Court has not been determined (In Matter of Sloat v. Board of Examiners of Board of Education of City of New York, 274 N.Y. 367, 374, 9 N.E.2d 12, 15 (1937); Matter of Lombardo v. Board of Higher Education of the City of New York, 18 A.D.2d 444, 447--448, 240 N.Y.S.2d 119, 122--123 (First Dept. 1963); affd. 13 N.Y.2d 1097, 246 N.Y.S.2d 631, 196 N.E.2d 266 (1963)). In any event, respondent has raised no objection to petitioner instituting an Article 78 Proceeding in this case.

The sequence of events as revealed by the record here shows that: (1) the petitioner was present in the Knights of Columbus '* * * sitting at a table with friends and eating sandwiches and drinking a glass of beer * * *' in April, 1970, following which; (2) a letter was sent from the Director of Athletics to petitioner's parents dated June 1, 1970; (3) petitioner's mother then complained to the Director; (4) the Board of Education undertook to review the matter following which; (5) a letter dated June 19, 1970 was sent to petitioner's attorney from the Board of Education advising of the forfeiture; (6) petitioner then instituted his Article 78 Proceeding against respondent Board and finally; (7) an Answer was interposed by the respondent which; (a) controverted petitioner's allegation in his petition regarding his lack of knowledge of Rule 5.2 (in support of this respondent attached to its Answer affidavits of coaches for the 1968 and 1969 seasons); (b) alleged that a Board of Review had considered and upheld the determination of the Director of Athletics and; (c) made allegations (paras. 5, 8 & 14) terming the incident in April, 1970 a 'beer-bust'.

The latter two allegations may be disposed of briefly. With regard to the former of the two, there is nothing in the record prior to the interposition of the Answer that reveals any such consideration and determination by the Board of Review. With regard to the latter, the only facts on that issue in this record are that the eighteen-year old petitioner attended a bowling party as a member of the Knights of Columbus in its clubrooms and was sitting at a table with friends eating sandwiches and drinking a glass of beer. The determination sought to be reviewed here may not, after the proceeding is instituted, be enlarged by importing into the record additional facts not previously specified as being the basis upon which the administrative determination...