[*1]
Matter of Board of Educ. of Garrison Union Free School Dist. v Greek Archdiocese Inst. of St. Basil
2007 NY Slip Op 51924(U)
Decided on September 27, 2007
Supreme Court, Albany County
Ceresia, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 27, 2007
Supreme Court, Albany County


In the Matter of Board of Education of the Garrison Union Free School District, Plaintiff,

against

Greek Archdiocese Institute of St. Basil a/k/a St. Basic Academy; the New York State Office of Children and Family Services; and Richard P. Mills, Commissioner of the New York State Education Department, Defendants.




4078-05



Girvin & Ferlazzo, P.C.

Attorneys For Plaintiff

20 Corporate Woods Boulevard

Albany, NY 12211

(Salvatore D. Ferlazzo, Esq.,

of Counsel)

Kramer Levin Naftalis & Frankel LLP

Attorneys For Defendant

Greek Archdiocese Institute of

St. Basil a/k/a St. Basic Academy

1177 Avenue of the Americas

New York, NY 10036 (Julie Weiswasser, Esq.,

of Counsel)

Andrew M. Cuomo

Attorney General of the

State of New York

The Capitol

Albany, NY 12224

(Kelly L. Munkwitz, Esq.,

Assistant Attorney General,

of Counsel).

George B. Ceresia, J.

The Greek Archdiocese Institute of St. Basil a/k/a St. Basic Academy ("St. Basil") operates a residential care program for children pursuant to Social Services Law Article 7 within the plaintiff school district. Since at least 1997 the plaintiff School District has had an ongoing dispute with St. Basil with regard to plaintiff's obligations in connection with the education of St. Basil's students[FN1]. The primary issue is with regard to who or what entity should be financially responsible for the education of St. Basil's students.

Plaintiff has commenced the above-captioned action for a declaratory judgment with respect to its obligations to provide an education to St. Basil's students, particularly those students who are privately placed or placed by an agency of a sister state, that is, not placed by order of a New York State Family Court, a New York State Social Services District or the New York State Division For Youth (see Education Law Article 81).

The New York State Office of Children and Family Services ("OCFS") and Richard P. Mills, Commissioner of the New York State Education Department ("State defendants"), have served an answer containing a first affirmative defense that plaintiff's claims are not justiciable. Based on this affirmative defense, St. Basil's has made the instant motion to (1) dismiss the complaint as against the State defendants, as mis-joined parties; and (2) transfer the place of trial from Albany County to Putnam County. In a letter dated May 25, 2007, the State defendants indicate that they deliberately refrained [*2]from making a motion to dismiss. They indicate that they did so because they desire to remain in the action, primarily because the responsibilities of the State defendants may be affected. The State defendants argue that because the Commissioner of Education is a party to the action, venue was properly placed in Albany County pursuant to CPLR § 506 (b) (2).

Justiciability requires an actual controversy, not merely a potential one. The courts of this state only decide concrete disputes between adverse litigants having a genuine stake in the outcome, (Church of St. Paul & St Andrew v. Barwick, 67 NY2d 510, 518 [1986]; see NYPIRG v Carey, 42 NY2d 527, 529 [1977] [citing In re State Indus. Comm'n, 224 NY 13, 16 [1918][Cardozo, J.]]). They eschew hypothetical quarrels and remote questions of merely abstract or academic interest, (see generally 5 Weinstein-Korn-Miller, NY Civ Prac, Art. 30).

The complaint challenges the obligation of plaintiff to educate non-resident children who are privately placed at St. Basil. Commissioner Mills, in two prior administrative determinations (St. Basil I, dated April 6, 2004 and St. Basil II, dated March 11, 2005), has ruled that plaintiff has an obligation to educate St. Basil students. The issue concerning the responsibility for the education of privately placed students under Education Law Article 81 was not specifically addressed in these decisions[FN2]. In this respect there appears to be a genuine controversy between plaintiff and Commissioner Mills. In addition, plaintiff also challenges the scope of the license granted by the Office of Children and Family Services, specifically with regard to whether the license authorizes St. Basil to accept privately placed children. Counsel for the New York State Office of Children and Family Services, in a letter dated January 3, 2007, denied St. Basil's request to add conditions to St. Basil's operating certificate. The mere fact that the State defendants, in their answer, raise a defense predicated upon the absence of a justiciable controversy does not make it so. In the Court's view, St. Basil has failed to carry its burden on the instant motion of demonstrating that the State defendants are misjoined.

This, however, does not end the matter. While it is true that CPLR 506 (b) (2) directs that the venue of a case involving the commissioner of education be placed in Albany County, that section expressly applies to special proceedings (see CPLR 506; see also Siegel, NY Prac § 120, at 214 [4th Ed.]). In fact, apart from CPLR 506, there is no express provision in the CPLR with respect to venue in matters involving state agencies. On the other hand, CPLR 504 (2) directs that an action involving a school district be [*3]commenced in the county where the school district is situated. In addition, "[w]here, because of joinder of claims or parties, there is a conflict of provisions under this article, the court, upon motion, shall order as the place of trial one proper under this article as to at least one of the parties or claims" (see CPLR 502). The instant matter is an action, not a special proceeding, and thus CPLR 506 does not apply. To the extent that it might be argued that Albany County is the county of residence of the State defendants (because their principle office is located there), this argument, at most, would support a finding that there are actually two proper counties for purposes of venue. The Court further notes that "where...there are general and specific provisions in the same statute, the specific provisions take precedence over the general" (Matter of Lamar Advertising of Penn, LLC v Pitman, 9 AD3d 734, 735 [3rd Dept., 2004], citing McKinney's Cons Laws of NY, Book 1, Statutes § 238). Mindful of the specific language contained in CPLR 504 (2), the Court concludes that this provision supersedes all others, and that venue of the instant action should be transferred to Putnam County, the County where the plaintiff is situated.

Accordingly, it is

ORDERED, that the motion to dismiss the complaint as against the New York State Office of Children and Family Services and Richard P. Mills, Commissioner of the New York State Education Department is denied; and it is further

ORDERED, that the motion for a change of venue is in all respects granted and the place of trial of the above captioned action be changed from the County of Albany to the County of Putnam; and it is further

ORDERED, that upon the entry of this order, the Clerk of the County of Albany shall forthwith deliver to the Clerk of the County of Putnam all papers filed in the above entitled action and certified copies of all minutes and entries.

This shall constitute the decision and order of the Court. All papers are returned to the attorney for the defendant St. Basil a/k/a St. Basil Academy, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated:September 27, 2007

Troy, New York

S/ ______________________________________

George B. Ceresia, Jr.

Supreme Court Justice

Footnotes


Footnote 1:The plaintiff School District indicates that it is one of the smallest school districts in the State, with one school building in which it educates approximately 300 pupils attending kindergarten to eighth grade. Thereafter, its resident high school age children attend either Highland Falls-Montgomery Central School or Haldane Central School District, on a tuition paying basis.

Footnote 2:The reason why the issue was not addressed, as Commissioner Mills observed in his decision dated April 6, 2004, is that St. Basil did not, at that time, possess a license to operate a child care institution, and as such, did not fall within the purview of Education Law Article 81.

Subsequently, on November 10, 2006, St. Basil was issued an operating certificate by the Office of Children and Family Services. It would therefore appear that St. Basil is now governed by the provisions of Education Law § 81.