Petitioners commenced this Article 78 proceeding in the nature of a declaratory judgment and mandamus returnable on December 21, 2007. The parties requested several adjournments to the return date of April 8, 2008.

Relief Requested:

Petitioners seek judgment pursuant to CPLR Article 78 enjoining the respondents from failing to provide funding to the Rochester City School District for the 2007-2008 year in accordance with Education Law Section 2576(5-b) equal to the 2006-2007 fiscal year; ordering respondents to provide funding equal to the 2006-2007 fiscal year pursuant to Education Law Section 2576(5-b); that respondent Robert J. Duffy, as Mayor of the City of Rochester be ordered to provide the certification mandated by Education Law Section 2576(5-b)(e).

The Board of Education and Rochester City School District join in petitioner's request by way of cross claim.

The City opposes and moves for summary dismissal of the petition and cross claim

of the Board of Education of the Rochester City School District and the Rochester City

School District on the grounds of no standing, no justiciable issue, and that the commissioner has not yet promulgated the required forms for filing.

The Rochester City School District further moves for authorization to assert its cross claim as originally alleged in its answer and further asserted in its proposed amended verified answer. The cross claim alleges that respondents have caused the School District and petitioners immediate harm by reducing the budget disrupting the District's current and future planning for educational programs and activities.

The City does not oppose the motion to amend.

Decision:

Respondent's motion for summary judgment is partially granted and partially denied.

The petition by RTA and Ms. Givens is dismissed as they have no standing to contest the issue raised nor suffered any damage resulting therefrom. However, the Court will allow the RTA to participate as amicus curiae should they so choose.

The dismissal of the cross-claim of RCSD and Board of RCSD for lack of standing is denied. The respondent has withdrawn its lack of standing opposition, and the Court consents to the cross claims asserted and stipulated to.

Dismissal on the grounds that the School District is not harmed by failing to allocate the $119,100.05 to real property taxes is denied. The allocation by the City has a detrimental effect under the Statute. Section 5(b)(a)(ii)(iii) mandates that the amount allocated for real property will serve as the minimum amount for the subsequent school year.

The mandate to file the certificates for the 2007/2008 allocation under 5(c) is denied as the commissioner has not promulgated the forms required by the Statute. When promulgated, it may have a bearing on the commissioner's interpretation of the Statute as it relates to the issues raised in these proceedings.

The City shall have 20 days from receipt of this Decision with notice of entry to provide an answer pursuant to 7804(b) and (f).

Contention of Petitioner and cross Petitioner:

The Rochester Teachers Association, Paula Givens and the Rochester City School District by petition dated October 19, 2007 and cross claim, respectively, against the City of Rochester seek mandamus to have the June 19 and 20, 2007 final budget, and its declared allocation vacated compelling the real property tax levy for the 2007/2008 school budget be increased from $108,061,200 to $119,100,000, and to remove its declared allocated funding from sales tax to -0-, even though, then, the total school budget expenditures will remain at $119,100,000. The petitioners contend that the New York State Education Law Section 2576(5-b) (MOE) Law passed and enacted by the Laws of 2007 and effective as of July 1, 2007 mandates the aforesaid allocation which it seeks. They assert that the prior years unallocated amount of $119,100,000 for school year 2006/2007 by said statute is required to be interpreted to be attributed solely to real property taxes as opposed to partial sales tax, and that such required allocation mandates a minimum budget of $119,100,000 for year 2007/2008 allocated to the real property tax source instead of the designated $108,061,200 allocated by the City. Petitioners also seek to mandate that the Mayor (CEO) file a certification stating source of funding for year 2007/2008 pursuant to Section 5(c).

The City has not submitted an answer, but instead, moves to summarily dismiss as a matter of law on the grounds:

1. That the Rochester Teacher's Association and Ms. Givens as an individual teacher and/or taxpayer have no standing to challenge the allocation, and in any event are not injured since they received the monies required under their contractual rights regardless of the allocation source.

2. That the Rochester City School District has not received Court permission to assert a cross claim as required by CPLR 7804(d).

3. That there is no cause of action because even if the proper real property tax allocation is $119,100,000 as asserted by the petition, the school district has received that amount even though allocated from two different sources.

4. That the Mayor (CEO) cannot comply with the certification filing mandate because the commissioner has not issued the forms required by Statute. The petitioners do not deny this assertion.

Law and Rationale:

Standing and Damages

The petition of RTA and Ms. Givens is dismissed. Petitioners have no standing (N.Y.S. Assoc. Of Nurse Anesthetists v. Novello, as Commissioner of Health, 2 NY3d 207, (2004)), do not raise a constitutional issue, and can show no damage. (Boryszewski v. Byrdges, 37 NY2d 361, 369, (1975)). The funds required to be appropriated to fund the contractual rights of the Teachers Association and teachers were fully funded, and it is not relevant that two different sources were used.

The dismissal of the cross claims of the RCSD on the basis of standing is denied. RCSD is the party for which the statute's application was intended to benefit, and if improperly source allocated by the City, would suffer a detrimental effect, as hereafter more specifically stated.

Detrimental Effect or Justiciable Issue

The failure to properly allocate from real property taxes in accordance with the Statute despite the full amount budgeted using part sales tax source is not dispositive of the issue raised:

1. If the School District is correct, the 2006/2007 allocation from real property taxes of $119,100,000 will bind the City for 2007/2008, and for the subsequent year 2008/2009 according to the current statute.

2. However, if the City is correct that it can allocate $108,061,200 for the 2007/2008 year from real property taxes, then that will be the minimum amount for 2008/2009 year.

3. If the City's allocation is sustained for reasons other than the merits, ie, timeliness of the application, and the part allocation to sales tax was not proper, then the effect of the 2007/2008 allocation on the minimum amount for the next year's budget is unclear under the statute. [*2]

While future statutory amendments may make such effect moot, as it presently stands an improper allocation carries a detrimental effect. Even the proposed

modification in Ed. Law Section 2576 submitted by respondent to show the decision would be advisory due to possible future statutory changes, instead, proves that a justiciable issue would still exist, (Eichner Aff. 2/1/08, Ex E) under the proposed legislation. If part of the allocation is attributed to sales tax revenue as respondents have done in the 2007/2008 budget, and is unchanged, then the proposed legislation, which may be peculiar to our County, will allow any legal sales tax reduction to the City by the County to be passed off to the school district as a reduction in the City School budget.

In any event the alleged failure of the City to allocate in accordance with the Statute, if true, regardless of the total amount, does have a direct effect on the school district under the current statute, and is justiciable. (See Regan v. Cuomo, 182 AD2d 1060, 1061, 1062, (3rd Dept., 1992)).

Failure of Commissioner to Promulgate Filing Forms and Rules

The failure to file would not result in any assistance to petitioner in resolving the underlying issue since the City would likely file in accordance with the allocation sources of real property and sales tax which it set forth in its 2007/2008 budget.

However, in view of the issues raised in these proceedings, the promulgation of the forms by the Commission could clarify his interpretation of the Statute, such as, whether its first application applies prospectively to the 2007/2008 school year budget after its July 1, 2007 effective passage date when the City had full knowledge of the future mandated effect of such allocation, or whether it applies retroactively to the 2006/2007 year prior to passage of the legislation, when an allocation was not required or made, the City was free to determine the appropriate amount of its school expenditures in accordance with its understanding of need, and allocation or lack of allocation did not constitute a minimum mandate for the following school year. The latter consideration may raise Ex Post Facto and Home Rule principles.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry.

However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the petitioners is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry. [*3]

SO ORDERED.

Dated this 28th day of April, 2008 at Rochester, New York.

______________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT