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Decision No. 18,382

Appeal of THOMAS J. JONES from action of the Board of Education of the Lansing Central School District regarding a bond referendum.

Decision No. 18,382

(February 22, 2024)

Ferrara Fiorenza PC, attorneys for respondent, Thomas F. Barrett, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals various actions of the Board of Education of the Lansing Central School District (“respondent” or “board”) relating to a bond referendum.  The appeal must be dismissed. 

On November 1, 2022, district voters rejected a proposition related to a capital improvement project.  On or about November 28, 2022, the board adopted a resolution to place a second capital improvement project before the voters.  Both projects entailed infrastructure and safety upgrades, as well as the construction or replacement of facilities. 

On January 24, 2023, voters approved the second bond project by a single vote.  This appeal ensued.  A request for interim relief was denied on February 27, 2023.

Petitioner contends that respondent violated Education Law § 416 (6), which prohibits a revote within 90 days on “propositions for the construction of a new schoolhouse or an addition to a present schoolhouse at the same site.”  Petitioner also identifies several irregularities with the conduct of the election.  For relief, petitioner requested that respondent be prohibited from “go[ing] forth with the capital construction project because of ... irregularities and omissions of the public vote held on January 24, 2023....”

Respondent argues that it did not violate Education Law § 416 (6) because the two projects differed in size and scope.  Additionally, respondent maintains that petitioner has failed to prove that the outcome of the vote was affected by the alleged improper conduct.

First, I must address two preliminary matters.  After petitioner’s request for interim relief was denied, petitioner submitted an additional pleading on March 7, 2023 in response to respondent’s opposition to the stay request.  Such a response is not contemplated by the Commissioner’s regulations (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296).  To the extent petitioner seeks its admission as an additional pleading or supporting paper, he has not complied with the procedural requirements thereto (8 NYCRR 275.3, 276.5).  Therefore, I decline to consider this pleading.

Next, petitioner’s reply contains new information and claims.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  The only relief sought by petitioner was an interim order preventing “the district ... [from] ... go[ing] forth with the construction project ....”  Such relief was denied on February 27, 2023.  Accordingly, the appeal must be dismissed as moot (Appeal of J.Q., 59 Ed Dept Rep, Decision No. 17,739; Appeal of Qualite Sports Lighting, LLC, 57 id., Decision No. 17,411; Appeal of Radford, 57 id., Decision No. 17,283).[1]

In light of this disposition, I need not address the parties’ remaining contentions.




[1] In any event, petitioner has not alleged or proven sufficient facts that would warrant annulment of the January 24, 2023 vote.