Curry v. N.Y.S. Educ. Dep't

• Decision Date: 19 July 2018
• Docket Number: 526014
• Citation: 163 A.D.3d 1327,82 N.Y.S.3d 632
• Parties: In the Matter of David A. CURRY et al., Appellants, v. NEW YORK STATE EDUCATION DEPARTMENT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1327

82 N.Y.S.3d 632

In the Matter of David A. CURRY et al., Appellants,

v.NEW YORK STATE EDUCATION DEPARTMENT et al., Respondents.

526014

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 5, 2018

Decided and Entered: July 19, 2018

Education Law Center, Newark, New Jersey (Matthew Schock of O'Melveny & Myers LLP, New York City, of counsel), for appellants.

Barbara D. Underwood, Attorney General, Albany (Robert M. Goldfarb of counsel), for New York State Education Department and others, respondents.

Morgan, Lewis & Bockius LLP, New York City (Stephanie Schuster of counsel), for East Ramapo Central School District, respondent.

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the Supreme Court (Elliott III, J.), entered September 26, 2017 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioners are the parents of children who attend various schools within respondent East Ramapo Central School District (hereinafter the district). Petitioners commenced this CPLR article 78 proceeding against respondents New York State Education Department, New York State Board of Regents, Commissioner of Education and Chancellor of the Board of Regents (hereinafter collectively referred to as respondents), claiming that the East Ramapo Board of Education (hereinafter the Board) mismanaged the district's finances and, as a consequence of such mismanagement, deprived students within the district of a sound basic education. According to the petition, a commissioned report evaluating the district concluded, among other things, that the Board favored students who attended private schools within the district, exercised poor fiscal management and demonstrated a lack of transparency. The commissioned report made recommendations on how to remedy any identified deficiencies. The petition also referenced other reports, including one prepared by monitors appointed by the Education Department to assess the Board's activities. Petitioners alleged that this report recommended changes to the Board's governance and fiscal management, among other things. Petitioners requested a writ of mandamus compelling "[r]espondents to intervene and take such action as may be necessary and appropriate to remedy the ongoing violation of students' constitutional right to a sound basic education in East Ramapo" and ordering respondents to implement the recommendations made in the various reports referenced in the petition. Respondents moved to dismiss the petition arguing, among other things, that petitioners lacked standing to commence the proceeding and that mandamus to compel did not lie because petitioners sought the performance of a nonministerial act. The district, which intervened in the action, submitted a memorandum in support of respondents' motion. Supreme Court granted the motion and petitioners now appeal.

As an initial matter, respondents contend that the appeal is moot in view of remedial legislation that came into effect in 2016 after the commencement of this proceeding. "[A]n appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" ( Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). Among other things, the 2016 remedial legislation, of which we take judicial notice (see CPLR 4511[a] ), continued the use of monitors to attend all of the Board's meetings and also appropriated up to $3,000,000 to the district to enhance the educational opportunities for the district's students (see L 2016, ch 89, §§ 4, 5). On this latter point, the district would receive funding provided that it, among other things, developed a long-term strategic academic and fiscal plan addressing areas of need in consultation with the monitors and that the plan be approved by the Commissioner (see L 2016, ch 89, § 5[b] ).¹ To that end, respondents note that the Commissioner approved the district's proposed 2017–2018 budget and that the monitors submitted a report delineating the various improvements made.

We agree with respondents that the remedial legislation cited by them renders moot that part of the petition requesting that respondents intervene and take action in the district's affairs. Petitioners, however, also requested that respondents take specific action upon intervention—namely, adopting the recommendations in the reports cited in the petition. Respondents do not indicate whether these specific recommendations have been effectuated and, in fact, recognize that the remedial legislation did not give the Commissioner the authority to take all of the actions that petitioners seek to compel. Accordingly, the appeal has not been rendered wholly moot (see Matter of City of Glens Falls v. Town of Queensbury, 90 A.D.3d 1119, 1120–1121, 933 N.Y.S.2d 762 [2011] ).

Turning to the issue of whether petitioners had standing to commence this proceeding, "[s]tanding is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria" ( Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ; see ...