Levert v. Gavin
| Decision Date | 25 June 1963 |
| Parties | Application of Albert M. LEVERT, For an Order v. Joseph G. GAVIN, Jr., et al. |
| Court | New York Supreme Court |
Albert M. Levert, Northport, for petitioner.
Corwin & Stuckart, Huntington, for respondents.
The petitioner seeks an order 'adjudging that the proceedings of the respondents [Central School District No. 6, Town of Huntington] at the regular annual meeting * * * and the subsequent action of the voters of said school district * * * in adopting the school budget for the year July 1, 1963 to June 30, 1964, is invalid, illegal and void.'
Petitioner contends that the budget, including an item of $2,528.40 for payment of a legal fee, is void for that item. He states that the legal services the subject of this bill were rendered to certain school board members individually and not in their official capacity. For this reason the budget is purportedly illegal. Respondents take the position that legal services were rendered school board members involved in a law suit in their official capacity.
On May 7, 1963, respondents presented the school budget at a regular annual district meeting. On the following day the budget was submitted to the voters in the district and adopted. Petitioner here asks the enjoining of any levy of taxes pursuant to this budget.
The application is made at this time to avoid a proceeding after taxation in the nature of a taxpayer's suit. The remedy sought herein is predicated on the hypothesis that the controversy is one that may be directly reviewed or adjudicated by this court. Leone v. Hunter, 21 Misc.2d 750, 191 N.Y.S.2d 334; Application of Lombardo, 37 Misc.2d 436, 235 N.Y.S.2d 1010; Prendergast v. Bd. of Educ. of NYC, 192 Misc. 376, 80 N.Y.S.2d 739; Miller v. Gould, 121 Misc. 270, 200 N.Y.S. 884; Madeo v. McGuire, Sup., 192 N.Y.S.2d 936, 938 ( )
Respondent relies on the said Section 310 of the Education Law, which relates in part that This section is cited in conjunction with Section 2037: 'All disputes concerning the validity of any district meeting or election or of any of the acts of the officers of such meeting or election shall be referred to the commissioner of education for determination and his decisions in the matter shall be final and not subject to review.' Though persons aggrieved may appeal (Section 310) to the commissioner (Madeo v. McGuire, supra), disputes (Section 2037) are referred to the commissioner mandatorily. Guariglia v. De Furio, 34 Misc.2d 200, 228 N.Y.S.2d 697; Application of Pipe & Engineering Co., Sup., 220 N.Y.S.2d 175; Pacos v. Hunter, 29 Misc.2d 404, 218 N.Y.S.2d 354, appeal dismissed 11 N.Y.2d 1112, 230 N.Y.S.2d 735, 184 N.E.2d 322; Mullooly v. U. F. S. D. No. 8, 20 Misc.2d 795, 796, 190 N.Y.S.2d 809, 811 ().
The obvious conflict on procedure to be followed in the cited cases should be resolved. Until such resolution each court...
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Tombler v. Board of Ed. of Brookhaven-Comsewogue Union Free School Dist., BROOKHAVEN-COMSEWOGUE
...Commissioner where "orderly, technical and professionally competent review" by him adequately protects those aggrieved (Levert v. Gavin, 39 Misc.2d 569, 241 N.Y.S.2d 300). Thus, the courts have refused to assume jurisdiction in matters over which sole jurisdiction has been delegated to the ......
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Union Free School Dist. No. 7, Town of Greenburgh, Westchester County v. Nowicki
...office of the Commissioner of Education is empowered to deal with these problems both administratively and legally. See, Levert v. Gavin, 39 Misc2d 569, 241 N.Y.S.2d 300 (Supreme Court Suffolk, 1963), Leeds v. Board of Education, 19 Misc.2d 860, 190 N.Y.S.2d 127 (Supreme Court Nassau 1959),......
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Gustin v. Joiner
...81 Misc.2d 1043, 367 N.Y.S.2d 164; Matter of Hardy v. Commissioner of Education, 66 Misc.2d 984, 322 N.Y.S.2d 918; Matter of Levert v. Gavin, 39 Misc.2d 569, 241 N.Y.S.2d 300. The court finds, however, that the cases cited by petitioner, to wit, Matter of Levitch v. Board of Education, 243 ......
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Board of Ed., Union Free School Dist. No. 6, Town of Babylon, Suffolk County v. Board of Co-op. Educational Services, Third Supervisory Dist., Suffolk County
...for relief might be available in this dispute (Education Law, §§ 310, 2037), as this court has previously acknowledged (Levert v. Gavin, 39 Misc.2d 569, 241 N.Y.S.2d 300). However, the issues here are of first impression with respect to the interpretation to be given parts of section 1958 o......