Hurst v. Board of Educ. for Ithaca City School Dist.

• Decision Date: 14 May 1998
• Citation: 242 A.D.2d 130,672 N.Y.S.2d 928
• Parties: , 126 Ed. Law Rep. 373, 1998 N.Y. Slip Op. 4584 In the Matter of Patricia S. HURST, Respondent, v. BOARD OF EDUCATION FOR the ITHACA CITY SCHOOL DISTRICT, Appellant, and New York State Teachers' Retirement System et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 928

672 N.Y.S.2d 928

242 A.D.2d 130, 126 Ed. Law Rep. 373,

1998 N.Y. Slip Op. 4584

In the Matter of Patricia S. HURST, Respondent, v. BOARD OF EDUCATION FOR the ITHACA CITY SCHOOL DISTRICT, Appellant and New York State Teachers' Retirement System et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 14, 1998.

Bond, Schoeneck & King (R. Daniel Bordoni, of counsel), Syracuse, for appellant.

James R. Sandner, United Teachers (Ira Paul Rubtchinsky, of counsel), Albany, for Patricia S. Hurst, respondent.

Dennis C. Vacco, Attorney-General (Peter G. Crary, of counsel), Albany, for New York State Teachers' Retirement System and another, respondents.

Before CARDONA, P.J., and YESAWICH, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from a judgment of the Supreme Court (Connor, J.), entered April 7, 1997 in Albany County, which, inter alia, granted petitioner's application, in a proceeding pursuant to CPLR article 78, to direct respondent Board of Education for the Ithaca City School District to comply with Retirement and Social Security Law § 803 by providing the necessary employer's affidavit and review process.

Petitioner was employed as a substitute teacher in three different school districts from 1960 to 1975. Petitioner was a full-time teacher in the St. Johnsville School District in Tompkins County for the 1960-1961 school year, and a long-term substitute teacher for the 1962--1963 school year. As such, petitioner was mandatorily enrolled in respondent New York State Teachers' Retirement System and later withdrawn. Petitioner was employed part time in the Fort Plain Central School District in Tompkins County during the 1961-1962 and 1963-1964 school years, but was not enrolled in the Retirement System for those periods. Petitioner worked part time in the Ithaca City School District from 1968 until 1975. She became eligible for membership in the Retirement System in 1972 but did not rejoin until 1974.

In 1995, petitioner filed a claim for retroactive membership in the Retirement System pursuant to Retirement and Social Security Law § 803. The Retirement System sent her an employer affidavit, and instructed her to submit it to the first employer for whom she worked for a continuous period of time. Petitioner forwarded the application to respondent Board of Education for the Ithaca City School District (hereinafter respondent). Respondent, however, returned the form without completing it, stating that the form should be sent to the St. Johnsville School District based upon its belief that St. Johnsville was petitioner's first public employer.

Petitioner commenced this CPLR article 78 proceeding to compel respondent to fill out the employer affidavit. Respondent moved for a change of venue from Albany County to Tompkins County. Petitioner, the Retirement System and respondent New York State Teachers' Retirement Board (hereinafter TRB) opposed respondent's motion. Notably, the parties agreed to adjourn the issues in the CPLR article 78 proceeding until a decision was made on the motion for a change of venue, and informed Supreme Court of their agreement. Supreme Court denied respondent's motion for a change of venue, granted the petition and compelled respondent to complete the requested employer affidavit. Respondent appeals.

Initially, we conclude that Supreme Court did not abuse its discretion in denying respondent's motion for change of venue. It is well settled law that venue motions are within the discretion of the trial court, and will generally be upheld unless there is an abuse of discretion (see, Ithaca Peripherals v. Sequoia Pac. Sys. Corp., 141 A.D.2d 909, 529 N.Y.S.2d 47). Venue is usually based in the county of residence of the parties (see, CPLR 503). In an action against a school district, venue shall be in the county in which the school district is located (see, CPLR 504[2] ). In a special proceeding against a body or an officer, venue shall be in the county where the material events took place, or where the office of the respondent body or officer is located (see, CPLR 506[b] ).

Here, petitioner is a resident of Orange County, respondent is located in Tompkins County and both the Retirement System and TRB have their offices in Albany County. Where there are conflicting venue provisions and one or more parties seeks a change of venue, it is given to the discretion of the court to select the proper venue (see, Lawyers' Fund for Client Protection of State of N.Y. v. Gateway State Bank, 239 A.D.2d 826, 658 N.Y.S.2d 705, lv. dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492; see also, CPLR 502). In our view, Supreme Court correctly reasoned that the Retirement System and TRB were proper parties, and, therefore, did not err in denying respondent's motion.

Next, Supreme Court should have allowed respondent an opportunity to answer following its denial of the motion (see, CPLR 7804[f] ). However, "in the absence of any real question that the record as presented on the motion * * * permitted resolution of all disputed issues raised in the proceeding, we view Supreme Court's error as harmless" (Matter of Clark v. Board of Educ. for Kingston City School Dist., 236 A.D.2d 709, 712, 653 N.Y.S.2d 456, revd. sub nom. Matter of Scanlan v. Buffalo Pub. School Sys., 90 N.Y.2d 662, 665 N.Y.S.2d 51, 687 N.E.2d 1334). Since the...