Opinion
492 CA 18–02195
07-31-2019
In the Matter of BUFFALO COUNCIL OF SUPERVISORS AND ADMINISTRATORS, LOCAL #10, BY its President Crystal BARTON, Petitioner–Appellant, v. Dr. Kriner CASH, as Superintendent of City School District of Buffalo and Board of Education of City School District of Buffalo, Respondents–Respondents.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (PATRICK J. MACKEY OF COUNSEL), FOR PETITIONER–APPELLANT. NATHANIEL J. KUZMA, GENERAL COUNSEL, BUFFALO PUBLIC SCHOOLS, BUFFALO (JOEL C. MOORE OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (PATRICK J. MACKEY OF COUNSEL), FOR PETITIONER–APPELLANT.
NATHANIEL J. KUZMA, GENERAL COUNSEL, BUFFALO PUBLIC SCHOOLS, BUFFALO (JOEL C. MOORE OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.
PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in part, the petition is reinstated insofar as it seeks relief on behalf of Crystal Barton, and respondents are granted 20 days from service of the order of this Court with notice of entry to serve and file an answer.
Memorandum: In this CPLR article 78 proceeding, petitioner appeals, as limited by its brief, from that part of a judgment that, in effect, granted respondents' motion to dismiss the petition insofar as it sought relief on behalf of Crystal Barton. We reverse the judgment insofar as appealed from.
Initially, we agree with petitioner that the petition was not defective as a result of being verified by petitioner's counsel, rather than by petitioner. Although the verification requirement of CPLR 7804(d) must ordinarily be completed by a party, a verification "may be made by [a party's] attorney ‘[where, as here,] all the material allegations of the pleading are within the personal knowledge of ... [that] attorney’ " ( Matter of O'Neil v. Kasler, 53 A.D.2d 310, 314, 385 N.Y.S.2d 684 [4th Dept. 1976], quoting CPLR 3020[d][3] ). Moreover, a party challenging the sufficiency of a verification is required "to give ‘notice with due diligence to the attorney of the adverse party that he [or she] elect[ed]’ to treat the petition as a nullity" ( Matter of Colon v. Vacco, 242 A.D.2d 973, 974, 662 N.Y.S.2d 963 [4th Dept. 1997], lv denied 91 N.Y.2d 804, 668 N.Y.S.2d 559, 691 N.E.2d 631 [1997], quoting CPLR 3022 ). Thus, even assuming, arguendo, that the verification by petitioner's attorney was insufficient, we conclude that respondents waived any challenge to the petition on that ground by failing to make the requisite diligent efforts and instead waiting a month before seeking dismissal of the petition on that basis (see O'Neil, 53 A.D.2d at 315, 385 N.Y.S.2d 684 ; see also Rozz v. Law Offs. of Saul Kobrick, P.C., 134 A.D.3d 920, 921–922, 22 N.Y.S.3d 113 [2d Dept. 2015] ; see generally Lepkowski v. State of New York, 1 N.Y.3d 201, 210, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003] ; Matter of Giambra v. Commissioner of Motor Vehs. of State of N.Y., 46 N.Y.2d 743, 745, 413 N.Y.S.2d 643, 386 N.E.2d 251 [1978] ).
We also agree with petitioner that dismissal of the petition was not warranted under the doctrines of res judicata or collateral estoppel. In support of their motion, respondents contended that this proceeding was barred by res judicata and collateral estoppel as a result of prior arbitration between the parties. The arbitration resolved whether "the placement of [an employee] on paid administrative leave pending an investigation into allegations of misconduct [was] in violation of Article 4A of the collective bargaining agreement, which provides that no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause." In contrast, the present petition alleges that respondents violated Education Law § 2566 (6), which provides a superintendent with the limited authority "to suspend a[ ] ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action." Specifically, petitioner alleges that the respondent Board of Education of the City School District of Buffalo (School Board) never ratified or approved the suspension of petitioner's president, a high school principal (principal), at "the next regular meeting of the board," and therefore there was no authority for the continued suspension of the principal. Thus, because the issues raised here are not identical to those raised during the prior arbitration, res judicata and collateral estoppel do not apply (see generally M. Kaminsky & M. Friedberger v. Wilson, 150 A.D.3d 1094, 1096, 52 N.Y.S.3d 636 [2d Dept. 2017] ; Plumley v. Erie Blvd. Hydropower, L.P., 114 A.D.3d 1249, 1249, 980 N.Y.S.2d 855 [4th Dept. 2014] ).
Additionally, petitioner correctly contends that it was not required to exhaust administrative remedies prior to commencing this proceeding. First, the exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary where, as here, the petitioner alleges violations of the Education Law, not violations of the agreement (see Matter of Barhite v. Town of Dewitt, 144 A.D.3d 1645, 1647, 42 N.Y.S.3d 502 [4th Dept. 2016], lv denied 29 N.Y.3d 902, 2017 WL 1136985 [2017] ; Matter of Kaufmann v. Board of Educ., 275 A.D.2d 890, 890, 714 N.Y.S.2d 923 [4th Dept. 2000] ). The fact that petitioner also commenced a grievance proceeding based on an alleged violation of a collective bargaining agreement is of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct" ( Barhite, 144 A.D.3d at 1647, 42 N.Y.S.3d 502 [internal quotation marks omitted] ).
Second, although Education Law § 310 provides in relevant part that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation," the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise (see generally Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 156, 531 N.Y.S.2d 876, 527 N.E.2d 754 [1988] ; Matter of Alden Cent. Sch. Dist. [Alden Cent. Schs. Administrators' Assn.], 115 A.D.3d 1340, 1341, 983 N.Y.S.2d 184 [4th Dept. 2014] ; Matter of Hessney v. Board of Educ. of Pub. Schools of Tarrytowns, 228 A.D.2d 954, 955, 644 N.Y.S.2d 826 [3d Dept. 1996], lv denied 89 N.Y.2d 801, 653 N.Y.S.2d 278, 675 N.E.2d 1231 [1996] ). Petitioner's contention regarding section 2566, however, requires no more than the interpretation and application of the plain language of that statute for which no deference to the Department of Education is required (see Matter of Madison–Oneida Bd. of Coop. Educ. Servs. v. Mills, 4 N.Y.3d 51, 59, 790 N.Y.S.2d 619, 823 N.E.2d 1265 [2004] ; see generally International Union of Painters & Allied Trades, Dist. Council No. 4 v. New York State Dept. of Labor, 32 N.Y.3d 198, 209, 112 N.E.3d 1259 [2018] ; Seittelman v. Sabol, 91 N.Y.2d 618, 625, 674 N.Y.S.2d 253, 697 N.E.2d 154 [1998] ).
We further agree with petitioner that the petition has not been rendered moot by a subsequent investigation into additional alleged improprieties by the principal. Respondents neither alleged nor submitted evidence that the School Board, as opposed to the superintendent, has suspended the principal in compliance with Education Law § 2566(6) in connection with those new allegations.
We decline petitioner's requests on appeal that, should we reverse the judgment appealed from, this Court remit the matter to Supreme Court with instructions to award, inter alia, compensatory relief in petitioner's favor (see generally Parker v. Town of Alexandria, 138 A.D.3d 1467, 1468, 31 N.Y.S.3d 717 [4th Dept. 2016] ; Matter of Rosenberg v. New York State Off. of Parks, Recreation, & Historic Preserv., 94 A.D.3d 1006, 1008, 943 N.Y.S.2d 123 [2d Dept. 2012] ). Further, we note that where a motion to dismiss a petition is denied, " ‘the court shall permit the respondent to answer, upon such terms as may be just’ ( CPLR 7804[f] ), and ‘leave to serve [and file] an answer should be refused only if it clearly appear[s] that no issue exist[s] which might be raised by answer concerning the merits of the petitioner's application’ " ( Matter of Julicher v. Town of Tonawanda, 34 A.D.3d 1217, 1217, 824 N.Y.S.2d 522 [4th Dept. 2006] ), which is not the case here. We therefore reverse the judgment insofar as appealed from, deny the motion in part, reinstate the petition insofar as it seeks relief on behalf of Crystal Barton, and grant respondents 20 days from service of the order of this Court with notice of entry to serve and file an answer.