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Decision No. 12,596

Appeals of BERNARD M. MITZNER from actions of the Board of Education of the Goshen Central School District and Dr. Richard Nealon as Superintendent of Schools relating to expenditures under an austerity budget.

Decision No. 12,596

(October 29, 1991)

Shaw & Silveira, Esqs., attorneys for respondents, Garrett Silveira, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a resident of the Goshen Central School District, has commenced two appeals challenging actions of the board of education relating to expenditures under respondent's austerity budget. One appeal concerns the proposed payment of a retirement incentive allowance to Dr. Richard Nealon as Superintendent of Schools; the other relates to the authorization of expenditures for repairs to the tennis courts and resurfacing of the running track. Petitioner requests that I issue an order annulling the determinations of respondent board of education in both cases, and that I grant other relief incidental to the primary relief sought. The appeals are consolidated for purposes of this decision. The appeals must be dismissed.

Petitioner is a resident of the Goshen Central School District. At a board meeting conducted on October 15, 1990, the Board of Education of the Goshen Central School District adopted a resolution accepting the retirement of Dr. Richard H. Nealon as Superintendent of Schools and authorizing the payment of a retirement incentive allowance. At a board meeting held on September 10, 1990, the board of education authorized the solicitation of bids to make repairs to the district's running track, and repairs to the district's four tennis courts. The voters of the district had not approved the district's budget for the 1990-91 school year, and therefore, the Goshen Central School District was operating pursuant to an austerity or contingency budget.

Petitioner commenced two separate Article 78 proceedings in Supreme Court, Orange County, by notice of petition and petition, both dated December 11, 1990, seeking to invalidate respondent's actions relating to the retirement incentive allowance, and the construction work and repair of the tennis courts and running track. Both proceedings were originally dismissed by orders of the Court dated January 31, 1991. Petitioner commenced these appeals on February 14, 1991, seeking essentially the same relief sought in the Article 78 proceedings. Subsequently, petitioner made a motion to reargue the proceedings commenced in Supreme Court. The Supreme Court granted the motions to reargue and on May 1, 1991, issued decisions in both proceedings. By letter of May 7, 1991, petitioner applied to submit the determinations received from Supreme Court for consideration in the two appeals. On June 20, 1991, after receiving proof of service from petitioner that his application had been served upon respondent, the application was granted.

Upon review and consideration of the record before me, including the decisions issued by Supreme Court, it is clear that the appeals have become moot. The Court concluded that respondent was not authorized to pay the retirement incentive allowance and that respondent had abandoned the repair and reconstruction plans insofar as they relate to the tennis courts. It also appears from the record before me that respondent rejected all bids received for the repair and reconstruction of both the tennis courts and the running track. The Commissioner of Education will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of Sileo, 28 Ed Dept Rep 313; Matter of Morris, 17 id. 95). Since the Supreme Court granted reargument and issued decisions with respect to two of the issues raised in these appeals, and the rejection of the construction and repair bids has rendered the remaining issue moot, the claims regarding the retirement incentive payment and the tennis courts must be dismissed on grounds of resjudicata and the claims with respect to the running track repairs must be dismissed as moot.