Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educational Services

• Decision Date: 09 May 1991
• Docket Number: WAYNE-FINGER
• Citation: 570 N.Y.S.2d 474,77 N.Y.2d 753
• Parties: , 573 N.E.2d 562, 68 Ed. Law Rep. 115 In the Matter of Betsy V. SCHERBYN, Appellant, v.LAKES BOARD OF COOPERATIVE EDUCATIONAL SERVICES et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 474

570 N.Y.S.2d 474

77 N.Y.2d 753, 573 N.E.2d 562, 68 Ed.

Law Rep. 115

In the Matter of Betsy V. SCHERBYN, Appellant, v. WAYNE-FINGER LAKES BOARD OF COOPERATIVE EDUCATIONAL SERVICES et al., Respondents.

Court of Appeals of New York.

May 9, 1991.

[77 N.Y.2d 754] [573 N.E.2d 564] Kevin H. Harren and Bernard F. Ashe, Albany, for appellant.

Samuel G. Brundage, Rochester, for Wayne-Finger Lakes Bd. of Co-op. Educational Services, respondent.

[77 N.Y.2d 755] John W. Park, County Atty., for Georgia Delaney, respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Petitioner Betsy Scherbyn appeals by leave of this Court from an order of the Appellate Division which affirmed Supreme Court's dismissal of her CPLR article 78 proceeding seeking review of the determination of respondent Wayne-Finger Lakes Board of Cooperative Educational Services (BOCES) dismissing her from a probationary typist position.

In affirming the determination below, the Appellate Division characterized this proceeding as in the nature of "mandamus to compel petitioner's reinstatement to [the position of typist]" and concluded that petitioner failed to demonstrate her entitlement to reinstatement. That court observed, as did Supreme Court, that she was not entitled to reinstatement because by operation of Civil Service rules, she had resigned from her position (162 A.D.2d 967, 557 N.Y.S.2d 192). We now reverse.

I

In September 1986, petitioner was appointed by BOCES to a probationary civil service typist position. The following January she applied for and was granted a leave of absence from the typist position so that she could accept a temporary position as a data entry operator. This leave of absence was approved by respondent Georgia Delaney, the Personnel Officer of Ontario County. In August of that year, she was appointed to a probationary position as data entry operator where she remained until January 1988 when she applied for and was granted a leave of absence from the probationary data entry operator position to enable her to accept a provisional appointment as data control clerk. Delaney also approved this leave of absence.

BOCES thereafter, in September 1988, terminated petitioner's provisional data control clerk appointment, reinstated her as a data entry operator and immediately terminated her from that position. BOCES then reinstated petitioner to her formally held typist position and filed a personnel change with Delaney, requesting approval of petitioner's reinstatement to the typist position. Upon the advice of the New York State Department of Civil Service, Delaney declined to approve the reinstatement because petitioner "vacated the position of Typist when she accepted a Leave of Absence from her probationary appointment as Data Entry Operator as it is impossible for an employee to encumber two positions." Delaney stated that she would certify petitioner only if she were reappointed to the data entry operator position but not to the original typist position. Delaney refused BOCES' request that she exercise her discretion and extend petitioner's leave of absence, whereupon BOCES terminated petitioner, determining not to retain her in the data entry operator position.

Supreme Court dismissed petitioner's article 78 proceeding challenging her termination by BOCES. Supreme Court concluded that the stated reason for petitioner's termination--that she could not encumber two positions simultaneously--was arbitrary and capricious "since there is no provision in either the Civil Service Law or the Ontario County Civil Service Rules prohibiting simultaneous leaves of absence from two positions." The court nevertheless held that under rule XX(1) of the Ontario County Civil Service Rules, invoked by respondents BOCES and Delaney for the first time in their answers to the petition, petitioner was deemed to have resigned from the typist position and thus was not entitled to be reinstated to that position.

The Appellate Division affirmed. It characterized this article 78 proceeding as in the nature of "mandamus to compel petitioner's reinstatement to [the position of typist]" and noted that the rule limiting " 'judicial review of an [agency] determination * * * to the grounds invoked by the agency' * * * is not applicable here" because "it is not a proceeding in the nature of certiorari to review a quasi-judicial determination of a quasi-judicial body following hearing." (162 A.D.2d 967, 968, 557 N.Y.S.2d 192.) Thus, the court concluded that Supreme Court properly decided the issues raised by respondents' answers and correctly dismissed the petition.

II

a

The Appellate Division erred in characterizing this proceeding as in the nature of mandamus to compel. It is, rather, in the nature of mandamus to review, which differs from mandamus to compel in that a petitioner seeking the latter must have a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief (see, CPLR 7803[1]; Matter of Crain Communications v. Hughes, 74 N.Y.2d 626, 541 N.Y.S.2d 971, 539 N.E.2d 1099; Matter of Kupersmith v. Public Health Council, 63 N.Y.2d 904, 483 N.Y.S.2d 211, 472 N.E.2d 1039; Matter of City of Newburgh v. Public Employment Relations Bd., 63 N.Y.2d 793, 481 N.Y.S.2d 327, 471 N.E.2d 140; Matter of De Milio v. Borghard, 55 N.Y.2d 216, 448 N.Y.S.2d 441, 433 N.E.2d 506; Matter of Legal Aid Socy. v. Scheinman, 53 N.Y.2d 12, 439 N.Y.S.2d 882, 422 N.E.2d 542; Matter of Police Conference v. Municipal Police Training Council, 51 N.Y.2d 810, 433 N.Y.S.2d 95, 412 N.E.2d 1321; see also, McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C7801:4, at 31).

In a proceeding in the nature of mandamus to review, however, a court examines an administrative action involving the exercise of discretion. Mandamus to review resembles certiorari, except that in a certiorari proceeding a quasi-judicial hearing normally is required and the reviewing court has the benefit of a full record. The standard of review in a certiorari proceeding is "substantial evidence" (see, CPLR 7803 [4]; Matter of 125 Bar Corp. v. State Liq. Auth., 24 N.Y.2d 174, 299 N.Y.S.2d 194, 247 N.E.2d 157). In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity "to be heard" and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law. (See, CPLR 7803 [3]; Siegel, NY Prac § 558, at 874-875 [2d ed]; see also, Matter of 125 Bar Corp. v. State Liq. Auth., supra; Matter of Colton v. Berman, 21 N.Y.2d 322, 287 N.Y.S.2d 647, 234 N.E.2d 679; Matter of Ayers v. Coughlin, 137 A.D.2d 300, 306, 529 N.Y.S.2d 390, mod. 72 N.Y.2d 346, 533 N.Y.S.2d 849, 530 N.E.2d 373; Carrion v. Webb, 131 A.D.2d 806, 517 N.Y.S.2d 171; Matter of Harlem Val. United Coalition v. Hall, 80 A.D.2d 851, 436 N.Y.S.2d 764, aff'd 54 N.Y.2d 977, 446 N.Y.S.2d 33, 430 N.E.2d 909; Graca v. State Liq. Auth., 32 A.D.2d 879, 302 N.Y.S.2d 490; Rochester Colony v. Hostetter, 19 A.D.2d 250, 241 N.Y.S.2d 210; see generally, 5 NY Jur 2d, Article 78 and Related Proceedings, § 78) b

It is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency (Matter of Aronsky v. Board of Educ., 75 N.Y.2d 997, 557 N.Y.S.2d 267, 556 N.E.2d 1074). We have said that " '[a] reviewing court, in dealing with a determination * * * which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis' " (see, Matter of Montauk Improvement v. Proccacino, 41 N.Y.2d 913, 394 N.Y.S.2d 619...