Upon the foregoing papers, the Order to Show Cause submitted by the Plaintiff, Lawrence Kirton, seeking an order pursuant to CPLR § 6301, enjoining and restraining the Defendant, Pless [*2]M. Dickerson ("Dickerson") and those acting in concert with him, from holding the Defendant, Dickerson out as a member of the Board of Education of the Westbury Union Free School District ("School Board") or taking any action in his capacity as a School Board member and declaring that any actions taken by him as a Board member on or after July 13, 2010 null and void and invalidating the School Board's resolutions voted on by him on or after July 13, 2010, is determined as hereinafter provided.

In this action, the Plaintiff, as a resident of Nassau County, alleges that the Defendant, Dickerson, allegedly a former member of the Westbury Union Free School District Board of Education, vacated his seat by failing to serve in accordance with Education Law § 2109 by neglecting to attend three (3) successive meetings without a valid excuse. The Plaintiff alleges that Dickerson has nevertheless continued to hold himself out as a School Board member and participate in purported School Board meetings and activities, including resolutions which are null and void due to his termination as a member. The Plaintiff seeks to permanently enjoin the Defendant from acting as a School Board member and also seeks a declaration that any actions taken by him on or after July 13, 2010 are null and void and without legal effect.

The Plaintiff presently seeks preliminary injunction relief enjoining the Defendant, Dickerson from acting as a School Board member of the Westbury Union Free School District.

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 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; Mr. 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 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 [*3]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 vacate the stay that the Commissioner had granted Pless Dickerson protecting his status as School Board member and to sought to compel a decision of 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, 2010, 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. A temporary restraining order restraining Larry D. Wornum and Rod Bailey from acting as School Board members was granted by order of this Court dated July 26, 2010 in the matter entitled BOARD OF EDUCATION FOR THE WESTBURY UNION FREE SCHOOL DISTRICT v. LARRY D. WORNUM and ROD BAILEY, under Index No.: 014014/10.

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.

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).

The Plaintiff has not established his entitlement to preliminary injunctive relief. He has failed to establish a likelihood of success on the merits. This court lacks jurisdiction to invalidate the Defendant's position on the School Board. That jurisdiction falls solely within the Commissioner of the New York State Board of Education's exclusive domain or the School Board's. See Education [*4]Law §§ 306, 1706; 8 NYCRR § 277.2; Education Law § 1709 (18); Education Law § 2109. In any event, irreparable harm has not been demonstrated and the equities tip in favor of the Defendant as he is a duly elected member of the School Board and is entitled to serve his term and there does not appear to be any grounds for his removal.

Accordingly, it is hereby

ORDERED, that the Plaintiff's Order to Show Cause is DENIED; and it is further

ORDERED, that the Defendant shall serve its answer within twenty (20) days of the date of entry of this Order 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

___________________________

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