Thornton v. Saugerties Cent. Sch. Dist.

• Decision Date: 01 December 2016
• Parties: In the Matter of Sherian THORNTON, Appellant, v. SAUGERTIES CENTRAL SCHOOL DISTRICT, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1138
43 N.Y.S.3d 173
2016 N.Y. Slip Op. 08139

In the Matter of Sherian THORNTON, Appellant,
v.
SAUGERTIES CENTRAL SCHOOL DISTRICT, et al., Respondents.

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

Dec. 1, 2016.

43 N.Y.S.3d 174

Cooper Erving & Savage, LLP, Albany (Carlo A.C. de Oliveira of counsel), for appellant.

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction (Bryan D. Duroy of counsel), for Saugerties Central School District, respondent.

Guercio & Guercio, LLP, Latham (Erin M. O'Grady–Parent of counsel), for Ulster County Board of Cooperative Educational Services, respondent.

Before: GARRY, J.P., EGAN JR., ROSE, DEVINE and MULVEY, JJ.

MULVEY, J.

145 A.D.3d 1138

Appeal from a judgment of the Supreme Court (Work, J.), entered September 16, 2015 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel reinstatement to her former position.

Petitioner was employed by respondent Saugerties Central School District (hereinafter District) for approximately five years and was responsible for, among other things, maintaining the District's student and data management systems. Petitioner had no supervisory duties, and the minimum qualifications for her position did not require any specialized licenses. In early 2012, the District and respondent Ulster County Board of Cooperative Educational Services (hereinafter BOCES) engaged in discussions regarding ways to provide more cost effective and efficient data management services to the District. Thereafter, the District purchased data management services from BOCES. As a result, the District's Board of Education voted to eliminate petitioner's position, and her job duties were assumed by existing staff members of BOCES. Petitioner demanded that she be transferred to BOCES to perform her former job duties pursuant to Civil Service Law § 70(2). The District denied her request.

Petitioner then commenced this proceeding seeking reinstatement to her former position, transfer of her employment to BOCES and reinstatement of her employee benefits. BOCES filed an answer with objections in point of law and the District filed a pre-answer motion to dismiss. Supreme Court (Zwack, J.) dismissed the petition on the merits, concluding that petitioner failed to establish a clear right to the relief sought because she was not a "necessary" employee within the meaning of Civil Service Law § 70(2). Upon appeal to this Court, we reversed and remitted the matter to Supreme Court, ruling, among other things, that "Supreme Court erred in addressing the merits under this procedural posture" (121 A.D.3d 1253, 1254, 994 N.Y.S.2d 708 [2014] ).

145 A.D.3d 1139

Upon remittal, the District served an answer. Petitioner then moved for discovery pursuant to CPLR 408 and 3107 seeking to depose Karen Bartash and Denise Olsen, two BOCES staff members, who ultimately became responsible for the District's data management. Supreme Court (Melkonian, J.) denied petitioner's motion on the ground that "the depositions of these staff members [were] neither material nor necessary to the prosecution of petitioner's

43 N.Y.S.3d 175

claims" because the record revealed that BOCES "had sufficient staff to provide the data management services and ha[d] been providing [such] services for the [District] since the abolition of petitioner's position without interruption." Petitioner then moved for a trial pursuant to CPLR 7804(h) and Supreme Court (Work, J.) denied the motion and dismissed the petition on the merits, holding that there were no questions of fact warranting a trial and that petitioner failed to establish "a clear legal right to the relief requested." Petitioner appeals.

We affirm. Petitioner argues that Supreme Court erred in denying her motion for a trial and improperly dismissed the petition, as triable questions of fact remain concerning who absorbed her job functions and when, and whether such BOCES staff members had ever performed those job functions before the transfer of petitioner's duties to BOCES. Respondents contend that petitioner was not entitled to a transfer of her job function under Civil Service Law § 70(2) because the record establishes that BOCES had sufficient qualified staff available to perform the transferred duties, and petitioner failed to establish the existence of material facts in dispute.

Mandamus to compel, sought by petitioner, is "an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought" (Matter of Shaw v. King, 123 A.D.3d 1317, 1318–1319, 999 N.Y.S.2d 253 [2014] [internal quotation marks and citation omitted]; see Matter of Justice v. Evans, 117 A.D.3d 1365, 1366, 986 N.Y.S.2d 699 [2014] ). Civil Service Law § 70(2) provides, in...