Upon the foregoing papers, the Order to Show Cause submitted by the Plaintiff, Board of Education for the Westbury Union Free School District ("School Board") seeking an order pursuant to CPLR § 6311, enjoining and restraining the Defendants, Larry D. Wornum and Rod Bailey and those acting in concert with them from holding themselves out as members of the School Board and declaring that any actions taken by them as School Board members on or after July 6, 2010 are null and void and the Cross-motion by the Defendants, Larry D. Wornum and Rod Bailey seeking an order pursuant to CPLR § 3211 (a) (4) dismissing the complaint in this action are determined as hereinafter provided.

In this action, the School Board seeks to permanently enjoin the Defendants, Larry D. Wornum and Rod Bailey from holding themselves out as School Board members and from taking any action or engaging in any conduct in said purported capacity.

The pertinent facts are as follows:

On May 18, 2010, an election was held to fill the upcoming vacancies of three (3) School Board members' terms, Floyd T. Ewing III, Lawrence F. Zaino and the Defendant, Larry D. Wornum, whose terms were to expire at the end of the school year on June 30, 2010. Seven candidates ran for the three positions; the Defendant, Wornum was the only incumbent who ran. The winners of that election were Siela A. Bynoe, Leslie F. Davis and Rodney Caines.

On or about June 7, 2010, before the incumbent Board Members' terms expired, the incumbent School Board declared the seats held by two of the incumbents, Floyd T. Ewing III and Lawrence F. Zaino, as well as the seat held by Pless M. Dickerson, "vacant" based on their having missed three consecutive Board meetings without valid excuses. Mr. Dickerson filed a Petition with the New York State Commissioner of Education ("Commissioner") challenging that declaration regarding his seat on June 10, 2010. On June 21, 2010, the Commissioner granted a stay of the School Board's declaration regarding his seat. That day, the School Board, consisting of only Wornum, Campbell, Brown and Lanzilotta, appointed the Defendant, Rod Bailey to fill one of the seats which had been declared vacant.

On July 4, 2010, at a special meeting called by the interim School Board President, Karen B. Campbell, the incumbent School Board passed a resolution postponing its annual Reorganization Meeting which had been set at its prior Reorganization Meeting which was held on July 1, 2009, from July 7, 2010 to July 14, 2010.

The newly elected Board Members, Byone, Davis and Caines took their oaths of office on July 6, 2010, which were filed with the District Clerk. That day, Mr. Dickerson called for a special meeting of the School Board on July 7, 2010. A quorum was present at the meeting on July 7, 2010 and a resolution was passed rescinding the School Board's resolution declaring Mr. Dickerson's seat vacant because he had provided an adequate explanation for his School Board meeting absences. That day, following the special meeting, the newly elected School Board immediately held its Reorganization Meeting which had been scheduled on July 1, 2009. The newly elected members renewed their oaths of office and passed a resolution rescinding the resolution which had been adopted by the incumbent School Board on July 4, 2010 rescheduling the Reorganization Meeting from July 7, 2010 to July 14, 2010 and, elected Pless Dickerson president.

On our about July 7, 2010, the incumbent School Board commenced an Article 78 proceeding in Albany County against the Commissioner entitled Westbury Union Free School District v. David M. Steiner, Commissioner of the State of New York Department of Education, et al., seeking to [*2]vacate the stay that the Commissioner had granted Pless Dickerson protecting his status as School Board member and to sought to compel a decision on Mr. Dickerson's appeal. By letter dated July 13, 2010, Mr. Dickerson sought to withdraw his Petition before the Commissioner based upon the School Board's rescission of the resolution which declared his seat vacant. That request was officially accepted by the Commissioner that day and Mr. Dickerson's proceeding was immediately discontinued. Therefore, there is presently no proceeding pending before the Commissioner.

In defiance of the July 6, 2010 swearing in of the newly duly elected board members and their ensuing actions, the incumbent School Board held its own annual Reorganization Meeting (which had been cancelled by the newly elected Board Members) on July 14, 2010. Those in attendance resolved to have C. Robinson & Associates represent the School Board to pursue the litigation pending in Albany County against the Commissioner. The meeting was then adjourned to July 15, 2010 to provide the newly elected members an opportunity to be sworn in. On July 16, the newly elected School Board moved by Order to Show Cause in Albany County to remove C. Robinson and Associates as attorneys for the School District. That same day, the incumbent School Board moved by Order to Show Cause in Albany County to enjoin the newly elected School Board from taking any actions on behalf of the School District and to invalidate any meetings held and/or resolutions made by it, including their substitution of Jaspan Schlesinger, LLP for C. Robinson & Associates. Injunctive relief against the newly elected officers was sought via that motion.

The incumbent School Board posted a Notice of a Special Meeting to be held on July 22, 2010 on the door of the School District's Administration Building. This action then ensued. A temporary restraining order restraining the Defendants, Larry D. Wornum and Rod Bailey from acting as School Board members was granted by order of this Court dated July 26, 2010.

In view of Pless Dickerson's withdrawal of his Petition before the Commissioner, the proceeding pending in Albany County was rendered moot. In fact, by Order dated November 17, 2010, the proceeding commenced by the School District in Albany County was dismissed by the Supreme Court, Albany County based on, inter alia, mootness.

Defendants' Application Pursuant to CPLR § 3211 (a) (4)

It is the sole jurisdiction of the Commissioner of Education to determine the propriety of a School Board Member's status. See Education Law § 1706. While the Commissioner also has exclusive jurisdiction regarding all disputes over the validity of school district elections (see, Schulz v. State, 86 NY2d 225 [1995], citing Finley v. Spaulding, 274 A.D. 522, 526 [3rd Dept. 1948]; Market v. Wilson, 284 A.D. 1086, 1087 [3rd Dept. 1954]; Summerville v. Roosevelt Union Free School Dist., 128 AD2d 769 [2nd Dept 1987]), the results of the election are not challenged here. Only following a determination by the Commissioner does the Albany County Supreme Court acquire jurisdiction.

The parties to this action and the proceedings in Albany Supreme Court are not "the same:" The Westbury Union Free School District is not the individual defendant here. In fact, the named defendants in this action were not even members of the School Board when the Albany action was commenced on July 7, 2010. The newly elected members were sworn in on July 6, 2010. Dismissal of this action pursuant to CPLR § 3211 (a) (4) does not lie. See also, Morgulas v. J. Yudell Realty, Inc., 161 AD2d 211 (1st Dept. 1990). In addition, the relief sought in this action and those proceedings is different. In this action, the School Board seeks a determination regarding the Defendants, Wornum and Bailey's status as School Board members. In the Albany proceeding, the [*3]issue was Pless Dickerson's status.

Accordingly, it is hereby

ORDERED, that the Defendants' Cross-motion is DENIED.

Plaintiff's Application Pursuant to CPLR § 6301

To obtain preliminary injunctive relief, the moving party must establish a likelihood of success on the merits, that he will sustain irreparable damage if the relief is not granted and that the balancing of equity tips decidedly in his favor. Aetna Ins. Co. v. Capasso, 75 NY2d 860, 826 (1990); Board of Managers of Wharfside Condominium, 73 AD3d 822 (2nd Dept. 2010).

Contrary to the Defendants, Wornum and Bailey's argument, the Plaintiff School Board has standing to maintain this action. The members were properly sworn in on July 6, 2010. There is nothing that requires they be sworn in at the Reorganization Meeting. In any event, they renewed their oath of office at the Reorganization Meeting. Assuming, arguendo, that the date of that meeting had been properly changed by the incumbent School Board, the newly elected School Board properly changed it following their oaths of office.

Similarly unavailing is the Defendants' argument that Jaspan Schlesinger lacks authority to represent the School Board. Not only was it authorized to do so by a properly constituted School Board, assuming, arguendo, it lacks authority, the merits remain the same.

Finally, the Plaintiff School Board has not failed to exhaust its administrative remedies. Education Law § 1706 provides:

"For cause shown, and after giving notice of the charge and opportunity of defense, the commissioner of education may remove any member of a board of education. Willful disobedience of any lawful requirement of the commissioner of education, or a want of due diligence in obeying such requirement or willful violation or neglect of duty is cause for removal."

Causes for removal are not alleged here. What is at issue is when the Defendants' terms expired and concomitantly whether they should be enjoined from purporting to act as Board members.

The Plaintiff School Board has clearly established its entitlement to preliminary injunctive relief.

Accordingly, it is hereby

ORDERED, that the Defendants, Larry D. Wornum and Rod Bailey are preliminarily enjoined and restrained from holding themselves out as School Board Members of the Westbury Union Free School District; and it is further

ORDERED, that the Defendants shall serve their answer within twenty (20) days of the date of the service of this Order with Notice of Entry upon the Defendants' counsel and a preliminary conference in this matter shall be held on March 16, 2011 at 9:30 a.m. at the lower level of this Court.

All applications not specifically addressed herein are DENIED.

This constitutes the decision and order of this court.

DATED:Mineola, New York

January 28, 2011 [*4]

___________________________

Hon. Randy Sue Marber, J.S.C.