In the Matter of Jae v. Board of Educ. of Pelham Union Free School Dist.

• Decision Date: 11 October 2005
• Docket Number: 2004-03917.,2004-07769.
• Parties: In the Matter of JOEL JAE et al., Appellants, v. BOARD OF EDUCATION OF PELHAM UNION FREE SCHOOL DISTRICT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 581

802 N.Y.S.2d 228

2005 NY Slip Op 07534

In the Matter of JOEL JAE et al., Appellants, v. BOARD OF EDUCATION OF PELHAM UNION FREE SCHOOL DISTRICT et al., Respondents.

2004-07769.

2004-03917.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 11, 2005.

In a hybrid proceeding, inter alia, pursuant to CPLR article 78 in the nature of mandamus to compel the respondents Board of Education of Pelham Union Free School District, Terrence F. Martell, Catherine Draper, John Brice, William Cavanaugh, Danton Chin, Kathy Kafer, and Christopher J. O'Connor, individual members of the Board of Education of the Pelham Union Free School District, and the respondent Stephanie A. Pollack, in her official capacity as the District Clerk of the Pelham Union Free School District, to comply with the requirements of Public Officers Law §§ 104, 105, and 106 (3), and an action for a judgment declaring that the respondents Board of Education of Pelham Union Free School District, Terrence F. Martell, Catherine Draper, John Brice, William Cavanaugh, Danton Chin, Kathy Kafer, and Christopher J. O'Connor, individual members of the Board of Education of Pelham Union Free School District, and the respondent Stephanie A. Pollack, in her official capacity as the District Clerk of the Pelham Union Free School District, violated, among other statutes, Public Officers Law § 104 in the manner they convened executive sessions and prepared the minutes thereto, the petitioners, Joel Jae and Harry D. Lewis, appeal, as limited by their brief, from (1) stated portions of an order of the Supreme Court, Westchester County (Jamieson, J.), entered April 9, 2004, which, inter alia, upon only partially granting their first motion for leave to amend the petition to withdraw all but the fourth and sixth causes of action, and denying the remaining causes of action as academic, denied their second motion for leave to amend the petition to include additional causes of action, and (2) an order and judgment (one paper) of the same court entered August 2, 2004, which, inter alia, denied the amended petition and dismissed the proceeding.

Ordered that the appeal from the order entered April 9, 2004, is dismissed, as that order was superseded by the order and judgment and will be reviewed on the appeal therefrom (see Matter of Aho, 39 NY2d 241, 248 [1976]); and it is further,

Ordered that the order and judgment is modified by adding thereto a provision declaring that the Board of Education of Pelham Union Free School District, Terrence F. Martell, Catherine Draper, John Brice, William Cavanaugh, Danton Chin, Kathy Kafer, and Christopher J. O'Connor, individual members of the Board of Education of Pelham Union Free School District, and Stephanie A. Pollack, in her official capacity as the District Clerk of the Pelham Union Free School District, did not violate Public Officers Law §§ 100, 102 (2), §§ 103, 104, 105, 106, and 111 and Education Law § 414 (1) (c) and § 2121 in the manner they convened executive sessions and prepared the minutes thereto by not identifying in the motion to enter into an executive session those non-members of the Board of Education of Pelham Union Free School District who were invited to attend executive sessions of the Board of Education of Pelham Union Free School District, and excluded the general public from meetings of advisory committees of the Board of Education of Pelham Union Free School District; as so modified, the order and judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

Contrary to the petitioners' contention, the Supreme Court properly denied their second motion for leave to amend the petition to include additional causes of action, and only partially granted their first motion for leave to amend the petition to withdraw all but the fourth and sixth causes of action. "Although leave to amend a pleading `shall be freely given' in the absence of surprise or prejudice ... the determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed" (Sewkarran v DeBellis, 11 AD3d 445 [2004]; see CPLR 3025 [b]). Under the circumstances of this case, where the parties charted their own procedural course in which the Board of Education of Pelham Union Free School District (hereinafter the Board) compromised on numerous issues upon the petitioners' agreement to withdraw all but their fourth and sixth causes of action, significant prejudice would accrue to the Board if the petitioners' second motion for leave to amend the petition were granted (see Marine Midland Bank v Worldwide Indus. Corp., 307 AD2d 221, 222-23 [2003]). Further, the new causes of action the petitioners sought to plead in their second proposed amended petition are time-barred and patently lacking in merit, as they failed to name indispensable parties thereto (see CPLR 1001, 1003; Town of Webster v Village of Webster, 280 AD2d 931 [2001]; Matter of McQuay Group, McQuay-Perfex v New...