STATE OF NEW YORK
SUPREME COURT: COUNTY OF CHAUTAUQUA
vs. Index No.
BOARD OF EDUCATION
CLYMER CENTRAL SCHOOLS,
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
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
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
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
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
Justice of Supreme Court