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Decision No. 15,859

Appeal of LOUIS M. PALMERI, individually and on behalf of DAVID S. SCHAUBERT, from action of the Board of Education of the Lewiston-Porter Central School District, Robert Weller, Board President, and Edward Lilly, Board Member, regarding defense and indemnification.

Decision No. 15, 859

(January 10, 2009)

Norton/Radin/Hoover/Freedman and Webster Szanyi, LLP, attorneys for respondents, Andrew J. Freedman and Ryan G. Smith, Esqs., of counsel

MILLS, Commissioner.--Petitioner is a former member of the Board of Education of the Lewiston-Porter Central School District (“board”).  He challenges the action of the board in rescinding motions to defend and indemnify himself and David S. Schaubert (“Schaubert”), also a former board member, with respect to certain legal actions brought against them.  The appeal must be dismissed.

The factual background of this appeal may be found in three prior decisions (Appeal of Lilly, 47 Ed Dept Rep 268, Decision No. 15,692; Appeals of Stepien and Lilly, 47 id. 388, Decision No. 15,732; Appeal of Waechter, 48 id. __, Decision No. 15,853).  The facts stated in those decisions will not be repeated here.

On March 11, 2008, respondent Edward Lilly (“Lilly”), who was not at that time a board member, commenced an action for libel and slander in Supreme Court, Niagara County, against petitioner, Schaubert, and others.  At a meeting on March 18, 2008, the board voted to provide legal defense and indemnification to petitioner and Schaubert. (Lilly apparently also had commenced a small claims action against Schaubert, and the board also voted to defend and indemnify him in that action.  This appeal does not relate to the small claims action.)  Thereafter, on April 8, and May 6, 2008, resolutions were placed before the board to revoke the defense and indemnification granted on March 18, 2008, but such motions were defeated.

On May 12, 2008, the libel and slander action was dismissed by Supreme Court, but on June 10, 2008, Lilly served and filed a notice of appeal to the Appellate Division, Fourth Department.

Following the restoration of Lilly and Scott Stepien to the board pursuant to Commissioner’s Decision No. 15,732, on March 25, 2008, and after the May 2008 school board election, the board met on July 1, 2008, for both a reorganizational meeting and a business meeting.  At the business meeting, the newly-constituted board passed resolutions revoking prior board resolutions for defense and indemnification of both petitioner and Schaubert in both the libel and slander action brought by Lilly, and in the small claims action.

This appeal was commenced July 25, 2008.  Petitioner requests that I annul the board resolutions of July 1, 2008, thereby restoring the defense and indemnity resolutions voted on March 18, 2008.

On September 2, 2008, the Appellate Division, Fourth Department, dismissed the libel and slander case brought by Lilly because he had failed to perfect the appeal in a timely manner.

To the extent that petitioner seeks relief on behalf of Schaubert, the appeal must be dismissed.  A petitioner may not assert claims that clearly belong only to others (Appeal of Waechter, 48 Ed Dept Rep __, Decision No. 15,853; Appeal of Peto, 31 id. 390, Decision No. 12,677). 

The appeal must 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508). 

Because the libel and slander case has been finally dismissed, there is no relief which could practically be granted at this time.  I also note that, even though the board voted not to defend and indemnify petitioner and Schaubert, the board’s insurance carrier undertook the defense of both, and neither petitioner nor Schaubert was obligated to pay for his own defense.