________________________________________

LEWIS EVANS,

Plaintiff,

vs. Index No.

H 11,724

BOARD OF EDUCATION

CLYMER CENTRAL SCHOOLS,

Defendant.

________________________________________

WALSH & FLEMING, P.C.

(Andrew P. Fleming, Esq.

of Counsel) for Plaintiff

BECKSTROM AND PLUMB

(John K. Plumb, Esq.

of Counsel) for Defendant

DECISION and ORDER

GERACE, J.

Plaintiff seeks a preliminary injunction pursuant to CPLR

6301 enjoining the Clymer Board of Education from proceeding

with any vote or election on June 27, 1995, regarding a

proposed building reconstruction pending completion of a

boundary alteration proceeding now underway. Plaintiff claims

the vote would render moot the cause of action alleged in the

complaint which seeks the enjoinder.

In cases where a plainly invalid ordinance that affects

property rights is challenged, or an illegal bond issue is

underway, or making of illegal payments, courts will issue

injunctions against municipalities. See SCHRAGER v. ALBANY,

197 MISC 903, 99 NYS2d 697; HORNSTEIN V LISTER, 276 AppDiv

1085, affd 301 N.Y. 587.

Otherwise, there is a great reluctance on the part of the

Courts to interfere with local government and the decisions of

local officials with respect to local problems, particularly

by preliminary injunction on application of a well meaning or

disgruntled member of the local community. CARMODY-WAIT

Vol.10, Page 570, Sec. 34; CARMODY-WAIT 2ND, Vol.12, Sec.

78.32; See PEOPLE VS CANAL BOARD, 55 NY 390; EDWARDS MOTOR

TRANSIT CO v WALLENDER, 61 NYS2d 93; BORO HALL CORP v

IMPELLITTERI, 283 AppDiv 889, 130 NYS2d 6.

There is no claim of illegality here. Plaintiff wants

time to process the petition for modification of the boundary

lines between the Clymer and Sherman school district to

include some 40% of the Town of Mina.

The rationale for seeking a change in the boundaries is

that he and some 15 other residents "are of like mind on

educational issues and prospects with the people and board of

the Sherman District, and completely at odds with the Clymer

District and particularly its board."

That desire, no matter how well intentioned, does not

in and of itself provide a basis for an injunction, temporary

or otherwise.

Plaintiff's counsel states that for "the past several

months" he had been working with the plaintiff and others in

a boundary alteration proceeding. That petition is dated May

15, 1995, but was not presented until May 22, 1995, two weeks

after defendant adopted its May 8, 1995 resolution to schedule

a vote on a proposition authorizing reconstruction and

improvements to the Clymer School building and published

notices May 12, and nearly 6 months after the Board indicated

it was going to proceed with the project.

The fact that the Clymer board was working on the

building project for months was a matter of public knowledge

long before the resolution of May 8, 1995. In fact, plaintiff

served on a citizens committee that dealt with the project on

behalf of the board for several months and was well aware of

the Board's intention to proceed with it long before May 8;

and weeks, if not months before January 1995.

So, even if there was a basis for an injunction, laches

would be a basis for denial. De CANDIDO v. YOUNG STARS,INC.,

10 AD2d 922, 200 NYS 2d 695.

Lastly, the Court is not convinced plaintiff will suffer

any irreparable harm. If the voters reject the building

project, the board will have to re-assess expansion and may

even be compelled to revisit merger.

On the other hand, if the voters approve the building

project, there will be time for resolution of the boundary

petition before the school district is committed to

construction contract because construction details, plans and

specifications have yet to be prepared; and the school board

will not be in a position to let the project out for bids

before February, 1996.

This means there will be time for the parties, the

district superintendent, and the Commissioner of Education to

address the petition for boundary changes, and, if the

boundary alterations is approved, time for board to reconsider

the scope of the building project before substantial dollars

are committed.

A weighing of the equities clearly tips the scales in

favor of the Clymer School District. The children, the

teachers, the school district, the taxpayers, stand to lose

more by a temporary injunction than plaintiff would lose by a

denial, especially when plaintiff has not shown any

irreparable harm, but has merely made conclusionary claims. A

court cannot issue a preliminary injunction based on bare

allegations of irreparable harm.

Plaintiff must establish a convincing justification for

a preliminary injunction; a strong showing in affidavits of a

likelihood of success; and then, convincingly demonstrate that

he will be irreparably damaged. SIEGEL, NEW YORK PRACTICE,

Section 328. Plaintiff has not meet these tests.

The Court hereby vacates the Temporary Restraining Order

of June 8, 1995, denies Plaintiff's motion for a preliminary

injunction, and dismisses the complaint, without costs to

either party.

The Court directs that defendant, regardless of the

outcome of the election, expeditiously address the May 15,

1995, petition of plaintiff and others for alteration of the

Clymer School District boundary lines.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY.

Dated: June 21, 1995

Mayville, New York

JOSEPH GERACE

Justice of Supreme Court