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Decision No. 16,994

Appeal of STEVEN WHITE and BETTY CARMAND from action of Yehuda Weissmandl, Harry Grossman, Bernard L. Charles, Jr., Yonah Rothman, Moshe Hopstein, Yakov Engel, Pierre C. Germain, Jacob J. Lefkowitz, and Eliyahu Solomon, as members of the Board of Education of the East Ramapo Central School District, and Congregation Yeshiva Avir Yakov, regarding the sale of real property.

Decision No. 16,994

(November 9, 2016)

Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz, Esq., of counsel

Morgan, Lewis & Bockius LLP, attorneys for the individual respondents, David J. Butler, Esq., of counsel

Shebitz, Berman, Cohen & Delforte, P.C., attorneys for respondent Congregation Yeshiva Avir Yakov, Julia R. Cohen, Esq., of counsel

Petitioners challenge various actions relating to the November 21, 2014 sale of the Hillcrest Elementary School (“Hillcrest”) to respondent Congregation Yeshiva Avor Yakov (the “Congregation”) and seek removal of the named members of the Board of Education of the East Ramapo Central School District.  The appeal must be dismissed and the application for removal denied.

On April 19, 2010, the Board of Education of the East Ramapo Central School District (the “board”) voted to close Hillcrest and designated it as surplus property.  This action resulted in numerous subsequent legal proceedings challenging decisions of the board relating to the closure, lease, and sale of Hillcrest (see Appeal of Forrest, 53 Ed Dept Rep, Decision No. 16,501, judgment granted dismissing petition, January 29, 2014, Sup. Ct., Albany Co. (McDonough, J.); Appeal of Luciano, 51 id., Decision No. 16,308; Appeal of White, 50 id., Decision No. 16,239; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153)(collectively the “Hillcrest appeals”).  

Insofar as relevant to this appeal, the board ultimately adopted a resolution at a publicized special meeting on July 3, 2014, accepting the Congregation’s bid and authorizing the sale of Hillcrest for the price of $4,900,000.  Thereafter, the sale closed on November 21, 2014, at which time the board received the full purchase price of $4,900,000 and title to Hillcrest was legally transferred to the Congregation.

Approximately one month after the November 21, 2014 sale was completed, petitioners commenced this action against the nine members of the board, Yehuda Weissmandl, Harry Grossman, Bernard L. Charles, Jr., Yonah Rothman, Moshe Hopstein, Yakov Engel, Pierre C. Germain, Jacob J. Lefkowitz and Eliyahu Solomon (the “individual respondents”)[1], and the Congregation requesting, inter alia, that I nullify and set aside the sale of Hillcrest.  Petitioners’ request for interim relief was denied on January 16, 2015.

Petitioners’ contentions distill to a reiteration of alleged wrongdoings and issues that were previously settled by the Commissioner’s decisions in the Hillcrest appeals, and a claim that the November 21, 2014 sale must be annulled because the Congregation received preferential treatment regarding the sale price.

The individual respondents and the Congregation (collectively, “respondents”) assert that the Commissioner has no jurisdiction over the disposition of property now held by a private entity or any authority to reverse the completed transaction.  Respondents also argue that the petition must be dismissed on procedural grounds, including mootness, untimeliness, improper service and failure to join the Board of Education of the East Ramapo Central School District as a necessary party.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Initially, I note that the majority of petitioners’ claims relate to the closure, lease and prior attempted sale of Hillcrest – matters that occurred years ago and were already resolved in the Hillcrest appeals.  Therefore, any such claims are clearly untimely.

With respect to the current transaction, the 30-day time period in which to challenge the decision to sell Hillcrest to the Congregation for $4,900,000 commenced on July 3, 2014, when the board passed the resolution accepting the Congregation’s bid and authorizing the sale (see e.g., Appeal of White, 50 Ed Dept Rep, 16,239 [in this appeal, a prior challenge to the sale of Hillcrest was commenced within 30 days of the date the board voted to accept the bid]). 

While not entirely clear, the earliest reference in the record to service on any of the respondents purportedly occurred on December 20, 2014.[2]  Thus, the earliest date the instant appeal could have been commenced by the service of a notice of petition and petition was December 20, 2014  – nearly six months after the board accepted the Congregation’s bid and authorized the transaction (Appeal of the Town of New Windsor, 44 Ed Dept Rep 258, Decision No. 15,166).  Petitioners offer no excuse for this six-month delay, nor do they allege or establish that they were unable in good faith to discover the facts underlying their claims until the 30-day period prior to commencing this proceeding (Application of Paladino, 53 Ed Dept Rep, Decision No. 16,594; Application of Leman and Sluys, 39 id. 330, Decision No. 14,252).  Accordingly, the claims are untimely and petitioners have not provided sufficient basis to excuse their delay in commencing this appeal (see e.g., Appeal of the Town of New Windsor, 44 Ed Dept Rep 258, Decision No. 15,166).

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Almost all of petitioners’ claims and requests for relief are simply reiterations of those made in prior legal challenges to the closure, lease and sale of Hillcrest.  These issues, however, were settled by the decisions in the Hillcrest appeals and, therefore, are moot (Appeal of Jones et al., 55 Ed Dept Rep, Decision No. 16,823; Appeals of Bushwick Ascend Charter School, et al., 54 id., Decision 16,761). 

Moreover, to the extent the petition sets forth new claims regarding the current sale of Hillcrest.  I note that title to Hillcrest was legally transferred to the Congregation when the closing occurred on November 21, 2014. Consequently, to the extent petitioners request that I prevent the sale of Hillcrest, no meaningful relief can be granted and this claim must be dismissed as moot (Appeal of Forrest, 55 Ed Dept Rep, Decision No. 16,842).

Lastly, to the extent petitioners seek the removal of the individual respondents from the board, the application must be denied because the notice of petition is fatally defective.  Although the actual caption of the petition notes that petitioners also seek removal of the individual respondents from the board, section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]). In this case, petitioner failed to comply with §277.1(b), and instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

It is fundamental that a notice of petition in an application for removal which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (Application of Wolpin, 52 Ed Dept Rep, Decision No. 16,489; Application of Kroniser, 52 id., Decision No. 16,469; Application of Carrion, 50 id., Decision No. 16,228).  It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Application of Kroniser, 52 Ed Dept Rep, Decision No. 16,469; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Moreover, the petition fails to set forth any allegations or claims for removal and the “Wherefore” clauses fail to request any such relief.  Accordingly, to the extent the petition seeks the removal of the individual respondents from office, any such claims must be dismissed.

In light of the above disposition, the parties’ remaining contentions need not be addressed.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioners did not specifically name either the East Ramapo Central School District or the Board of Education of the East Ramapo Central School District as respondents in the caption of the petition.

 

[2] There are numerous objections and questions regarding whether and when petitioners properly served several of the respondents.  Based upon the affidavits of service provided, the earliest date upon which it can be said that service was clearly and unequivocally effected on an individual respondent was December 23, 2014.  In light of the disposition of this appeal on other procedural grounds, I need not address the issue of proper service.