Lilley v. Greene Cent. Sch. Dist.

• Decision Date: 03 January 2019
• Docket Number: 527253
• Parties: Jordon LILLEY, Appellant, v. GREENE CENTRAL SCHOOL DISTRICT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1180
90 N.Y.S.3d 661

Jordon LILLEY, Appellant,
v.
GREENE CENTRAL SCHOOL DISTRICT et al., Respondents.

527253

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

Calendar Date: November 20, 2018
Decided and Entered: January 3, 2019

90 N.Y.S.3d 662

Law Office of Ronald R. Benjamin, Binghamton (Ronald R. Benjamin of counsel), for appellant.

Hogan & Sarzynski, Lynch, Dewind & Gregory, LLP, Johnson City (John P. Lynch of counsel), for respondents.

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

MEMORANDUM AND ORDER

Pritzker, J.

168 A.D.3d 1180

Appeal from an order of the Supreme Court (Lambert, J.), entered June 5, 2018 in Chenango County, which, among other things, granted defendants' motion to dismiss the amended complaint.

Plaintiff was the head bus driver for defendant Greene Central School District (hereinafter the school district) and was also responsible for buildings and grounds maintenance. In 2016, plaintiff reported to defendant Gordon Daniels, the interim superintendent of the school district, that another bus driver under plaintiff's supervision had allegedly engaged in misconduct of texting while driving and punching in time cards of other employees who had not yet arrived at work, including the bus driver's daughter. Plaintiff alleges that he

90 N.Y.S.3d 663

was told by Daniels that, despite a recommendation from the school district's counsel to terminate the bus driver, no action would be taken against her. Subsequently, plaintiff reported the misconduct to the State Police and appeared before the school district's Board of Education to report the same. According to plaintiff, the day after appearing before the Board, he was placed on administrative leave. Plaintiff was provided a notice, pursuant to Civil Service Law § 75, which set forth that he was guilty of incompetence and/or misconduct. This notice detailed five separate charges, including that plaintiff breached General Municipal Law § 800 by selling the school district field lime and rock salt from Lilley Farms, which is owned by

168 A.D.3d 1181

plaintiff and his wife, and that such sale constituted a conflict of interest.

In September 2017, plaintiff commenced this action under Civil Service Law § 75–b seeking, among other things, damages and reinstatement. Defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Plaintiff cross-moved to disqualify defendants' counsel, John Lynch, and Lynch's law firm from further representing defendants, alleging that Lynch is a potential witness in this action. Supreme Court, among other things, granted defendants' motion, finding that documentary evidence submitted in support of the motion, which included price quotes and purchase orders/requisitions regarding the sale of field lime and rock salt from Lilley Farms to the school district, warranted dismissal of the complaint. The court also denied plaintiff's cross motion. Plaintiff now appeals.

" Civil Service Law § 75–b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting improper governmental action" ( Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 N.Y.3d 85, 91, 917 N.Y.S.2d 82, 942 N.E.2d 291 [2010] [internal quotation marks and citation omitted]; see Civil Service Law § 75–b[2][a] ). Although a claim pursuant to " Civil Service Law § 75–b cannot be sustained when a public employer has a separate and independent basis for the action taken" ( Matter of Brey v. Board of Educ. of Jeffersonville–Youngsville Cent. School Dist., 245 A.D.2d 613, 615, 664 N.Y.S.2d 496 [1997] [emphasis added]; see Civil Service Law § 75–b[3][a] ; Matter of Crossman–Battisti v. Traficanti, 235 A.D.2d 566, 567–568, 651 N.Y.S.2d 698 [1997] ), "[a] disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction" ( Matter of Kowalski [New York State Dept of Correctional Servs.], 16 N.Y.3d at 91, 917 N.Y.S.2d 82, 942 N.E.2d 291 ). Further, a motion to dismiss pursuant to CPLR 3211(a)(1)"is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Meyer v. Zucker, 160 A.D.3d 1243, 1245, 75 N.Y.S.3d 325 [2018] [internal quotation marks, brackets and citations omitted], lv denied 32 N.Y.3d 905, 84 N.Y.S.3d 859, 109 N.E.3d 1159 [2018] ; accord Trask v. Tremper Prop. Assn., Inc., 122 A.D.3d 1206, 1207, 997 N.Y.S.2d 805 [2014] ).

We find that...