City of Middletown Wins Article 78 Appeal Against Middletown School District

Court Decision On Article 78 Appeal

Decided on June 13, 2012 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT 
MARK C. DILLON, J.P. 
THOMAS A. DICKERSON 
L. PRISCILLA HALL 
SANDRA L. SGROI, JJ. 
2011-03532
(Index No. 7804/10) 

[*1]In the Matter of Enlarged City School District of Middletown, respondent, 

v

City of Middletown, et al., appellants.

Richard Guertin, Corporation Counsel, Middletown, N.Y. (Alex 
Smith and Robert N. Isseks of counsel), for appellants. 
Bond, Schoeneck & King, PLLC, Rochester, N.Y. (Edward P. 
Hourihan, Jr., and Joseph S. Nacca of 
counsel), for respondent. 
John A. Mancini, Albany, N.Y., for amicus curiae New York
State Conference of Mayors and 
Municipal Officials and Michael E. 
Kenneally, Albany, N.Y., for amicus curiae 
Association of Towns of the State of 
New York (one brief filed). 
Jay Worona and Kimberly A. Fanniff, Latham, N.Y., for amicus 
curiae New York State School Boards 
Association, Inc. (one brief filed). 


DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Public Works of the City of Middletown dated March 26, 2010, purportedly declining to review the petitioner/plaintiff's application for approval to connect a building to the sewer system of the City of Middletown unless and until the petitioner/plaintiff paid for the reconstruction, repair, or replacement of a certain existing sewer line owned and operated by the City of Middletown, and action for a judgment declaring, among other things, that a city may not require a city school district to pay for the reconstruction, repair, or replacement of an existing city sewer line as a precondition to the consideration and review of any application by the school district for a permit connecting a school district's new building to that sewer line, the respondents/defendants appeal from an order and judgment (one paper) of the Supreme Court, Orange County (Lubell, J.), dated January 26, 2011, which, in effect, granted the petition, annulled the determination, granted the petitioner/plaintiff's motion for summary judgment declaring, inter alia, that a city may not require a school district to pay for the reconstruction, repair, or replacement of an existing city sewer line as a precondition to the consideration and review of any application by a city school district for a permit to connect its new building to that sewer line, and, in effect, denied the respondents/defendants' application to dismiss the complaint as premature.

ORDERED that the order and judgment is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed, the petitioner/plaintiff's motion is denied, the respondents/defendants' application is granted, and the complaint is dismissed as premature. [*2]

The Supreme Court "may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (CPLR 3001). However, New York courts do not issue advisory opinions (see e.g. Cuomo v Long Is. Light. Co., 71 NY2d 349, 354). Thus, a declaratory judgment should only be granted when it will have a direct and immediate effect upon the rights of the parties (see Koehler v Town of Smithtown,305 AD2d 550, 551; Matter of United Water New Rochelle v City of New York, 275 AD2d 464, 466; cf. Hussein v State of New York, 81 AD3d 132, 135; Rockland County Multiple Listing Sys. v State of New York, 72 AD2d 742). "The doctrine of exhaustion of administrative remedies applies to actions for declaratory judgments," although there are exceptions available where, inter alia, "resort to administrative remedies would be futile or would cause irreparable injury" (Town of Oyster Bay v Kirkland, 81 AD3d 812, 815, lv granted 17 NY3d 716; see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57; Slater v Gallman, 38 NY2d 1, 3-4). In order to be amenable to declaratory relief, "[t]he dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination" (Waterways Dev. Corp. v Lavalle, 28 AD3d 539, 540; see Ashley Bldrs. Corp. v Town of Brookhaven, 39 AD3d 442;Bauer v Roman Catholic Diocese of Albany, 91 AD2d 730). Consequently, the request for a declaratory judgment is premature "if the future event is beyond the control of the parties and may never occur" (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531; see American Ins. Assn. v Chu, 64 NY2d 379, 385, cert denied 474 US 803; Capital Dist. Enters., LLC v Windsor Dev. of Albany, Inc., 53 AD3d 767; Tucci v Talon Seafood S., Inc., 27 AD3d 642, 644; Kings Park Indus., Inc. v Affiliated Agency, Inc., 22 AD3d 466, 467). The threat of a hypothetical, contingent, or remote prejudice to a party does not represent a justiciable controversy (see Ashley Bldrs. Corp. v Town of Brookhaven,39 AD3d 442; Waterways Dev. Corp. v Lavalle, 28 AD3d at 540; Fragoso v Romano, 268 AD2d 457).

Here, the record reveals that the petitioner/plaintiff (hereinafter the petitioner) commenced the instant hybrid proceeding and action in the midst of discussions with the respondents/defendants (hereinafter the appellants) regarding the petitioner's application for a water and sewer permit to service the new building it planned to construct. However, there is no evidence that the appellants ever refused to review the petitioner's permit application or asserted a formal set of conditions that the petitioner had to meet before the permit application would be reviewed. Moreover, there was no denial of the permit application, and the permit was not issued subject to any set of conditions. Rather, the evidence showed that the Commissioner of Public Works of the City of Middletown, who was responsible for reviewing the application and issuing the permit (see Code of the City of Middletown § 389-1[A]), did not receive the properly stamped plans from the petitioner, which were necessary to review the permit application, until the same day that the instant proceeding/action was commenced. Thus, the underlying dispute concerning the extent of the City's authority is not ripe for judicial review, and there is no justiciable controversy upon which the court may properly render a declaratory judgment (see Matter of Town of Riverhead v Central Pine Barrens Joint Planning & Policy Commn., 71 AD3d 679, 680-681; Ashley Bldrs. Corp. v Town of Brookhaven, 39 AD3d 442; Waterways Dev. Corp. v Lavalle, 28 AD3d at 540; Fragoso v Romano, 268 AD2d 457).

Since there is no evidence that the appellants refused to review the petitioner's permit application, the petition seeking relief pursuant to CPLR article 78 must be denied.

In light of our determination, the appellants' remaining contentions have been rendered academic. 
DILLON, J.P., DICKERSON, HALL and SGROI, JJ., concur.

ENTER: [*3]

Aprilanne Agostino

Clerk of the Court

Gangs in Middletown High School

According to Mr. Gonzalez, Middletown High School's former executive principal ,  90% of the behavioral problems in the High School are associated with  organized gangs. These gangs are local branches of National organizations.  Neither the seriousness nor the existences of this problem has ever been reported by Dr Eastwood to the public. The board was aware that the building decreased its security and no longer has SRO's. 


This situation is more disturbing given Mr. Estrada's announcement  that the High School administration has moved away from its security model.  Why would the district move away from its priority on security in light of its problem with gangs?  Dr. Eastwood  appears to have ignored this fact in his development of the his reorganization plan.  He previously admitted that he was aware that  Mr. Gonzalezr and other house principals were looking for other positions.  

The degree to which this information was taken into consideration by Dr. Eastwood in his reorganization of  the High School  administration can not be ascertained.  One would hope that his desire to change the High School's administration did not take priority over school security.                    

Legal Update

After the arrest of Mr. Fran Hoefer approximately two years ago, a Federal lawsuit was filed against Dr. Eastwood, Mr Geiger, and the Middletown board of Education for not allowing Mr. Hoefer to speak at a public board meeting, and for his later arrest by Middletown Police. The discovery phase for this case has been completed, and the school district has or will soon file for a summary judgement in this case. The district claims that they were not responsible for the arrest of Mr. Hoefer. However, according to Officer Marcado's police narrative, Mr. Haverlan of school security informed the Middletown police that Dr. Eastwood wanted Mr. Hoefer arrested. In addition, since Dr. Eastwood was the highest ranking administrator in the building at the time, it is difficult to see how and why school security would have contacted the police without his authorization.

Following this incident, a blog was was posted on "inside middletown schools" offering the comments that Mr. Hoefer had planned to give at the board meeting. Subsequently, Dr. Eastwood filed a libel suit against Mr. Hoefer and Dr. Mauro in State Court. In response to this lawsuit, Mr. Hoefer and Dr. Mauro filed a counter suit claiming Dr, Eastwood's lawsuit was without merit and a S.L.A.P.P. lawsuit. As defined by Wikapedia : "A strategic lawsuit against public participation (S.L.A.P.P.) is a lawsuit intended to censor or intimadate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal cost...". Currently, discovery has been completed for these cases. Unless a summary judgement is granted, these cases will go to trial by the end of the year, or the beginning of next year.

To refresh your memory, here's the video clip of Fran Hoefer being removed from the high school: http://www.youtube.com/watch?v=Kzjpk1naemI

Middletown High School Administration Shake Up

Buried within the Middletown School District's 20012-2013 budget is a restructuring of the Middletown High School administration. Mr. Gonzalez, executive principal, and all house principal positions have been eliminated. It is common knowledge that the high school has been plagued by student discipline and behavior problems. Televised student award ceremonies, athletic events, student recognition ceremonies, and student performances have helped hide these student behavior and control problems from the public. Student behavior problems at the high school are not new, and have been exacerbated by the elimination of the SRO positions and the down sizing of our security personnel. Last year, some board of education members warned that the loss of SROs and reduced security would have an adverse effect on the ability of personnel to control the behavior of students within the building. These concerns were ignored.

At the same time, the personnel morale at the high school is low, and employee dissatisfaction with the central administration growing. Many of the high school administrators have responded to these problems by looking for new positions outside the district. As reported in the Record, Dr. Eastwood was aware that some school administrators were looking for new positions. One question comes up: Was Dr. Eastwood's new administration reorganization plan for the high school coincidental with its administrators looking for new positions, or a preemptive action to rid the school of administrators who were attempting to leave the problem ridden school ? A administration reorganization would be the only way to get rid of these tenured employees.

We do know that Dr Eastwood's new plan for the high school administration came as surprise, and the board had not been consulted during its development. We also know that the administration's portion of next years budget increased. Therefore, where are the net cost savings, and what was Dr. Eastwood's true motivation for making these changes?

Last year, Inside Middletown Schools reported that a maintenance worker was dismissed from at Chorley after he complained about a mold problem in the building. His dismissal was despite the fact the several teachers in the building wrote letters testifying to the quality of his work ( please read earlier blog). Recently, a substitute teacher was fired personally by Dr. Eastwood after he used a district computer during school time to make an on line correction of a misstatement in the Record concerning the district. Did these people deserve to lose their positions ? Neither the dismissal of these employees, nor the loss of these high school administrators by a new administrative reorganization plan appears to us to be warranted or justified.

The 20012-2013 Middletown School District Budget

If the Middletown School District budget is approved by the voters this May, some district taxpayers will be saddled with a total school taxes increase of approximately 30% for a three year period. In the past, Dr. Eastwood appears to have promoted large school tax increases. Reported in a March, 2005 newspaper article in Oswego's "Palladian Times", Mr. Fisher, Dr. Eastwood's replacement as superintendent stated, "... taxes were increased by 60% in the previous four years..." In Middletown. for the past three years, Dr. Eastwood and his supporters on the board of education have refused to make the necessary cuts in staff and program to avoid raising our taxes. Rather, they complain about the Governor's cuts in state aid, the legislature's refusal to get rid of mandates, and how unfair is the need to have a 60% plus 1 vote on the budget to override the tax cap.

Neither Dr. Eastwood nor his board have given little more than lip service to the financial problems of district taxpayers. Even the fact that approximately 450 house in Middletown are in danger of foreclosure for non payment of taxes has had any effect on them from increasing your taxes again this year. After playing the blame game, Dr. Eastwood and his supporters refuse to accept the fact that our local tax payers can no longer afford to make up for cuts in state aid. They appear to be out of touch with tax payers, and to be living in an ivory tower or dream world. For example, they appear to believe that paying over a half a million dollars more for "better bricks" or more expensive granite rather than concrete curbing constitute a prudent use of limited public funds. The fact that we are even building a new school in these hard times brings into question Dr. Eastwood's and the board's ability to understand the needs and problems of local taxpayers.

Given the fact that Dr. Eastwood has a salary with benefits between $250,000-$300,000, might make his lack of understanding of the financial problems of district tax payers more understandable. The board's attitude and support for higher taxes is more difficult to explain. As the elect representatives of the public, they should be aware of the financial problems of tax payers as well as the financial needs of the school district. While cutting teaching positions, they even saw fit this year to set aside $13,000 for Dr. Eastwood's raise. Where are their priorities ?

The public needs to come out to vote and oppose increased taxes. Unlike previous years, if this budget is turned down twice by the voters, the contingency budget forced upon the district will have a 0% tax increase. The decision to raise your taxes is in your hands. VOTE NO TO INCREASED SCHOOL TAXES !!!

Eastwood deposition about physical contact with student

page 37 Eastwood Deposition

4 Q. Now, is it your testimony that you had no physical contact with the student?

6 A. No, it's not my testimony.

7 Q. So to your knowledge you did have physical contact with the student; is that correct?

10 A. Correct

11 Q. Was it a female student you had contact with?

13 A. Yes.

14 Q. Was it in a hallway?

15 A. Yes.

16 Q. Did you initiate the physical contact?

17 A. Yes.

Eastwood Deposition page 221

line 21 Q. Was your daughter's chemistry grade

line 22 changed?

line 23 A. Yes