Opinion
167 CA 21-01108
04-29-2022
In the Matter of Eve SHIPPENS, Amy Steiner, John P. Smith, Timothy Lyon and Donna Delano-Kerr, Petitioners-Appellants, v. BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF CITY OF BUFFALO, Respondent-Respondent.
ROBERT T. REILLY, WILLIAMSVILLE (CLAIRE T. SELLERS OF COUNSEL), FOR PETITIONERS-APPELLANTS. NATHANIEL J. KUZMA, GENERAL COUNSEL, BUFFALO (MARY B. SCARPINE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
ROBERT T. REILLY, WILLIAMSVILLE (CLAIRE T. SELLERS OF COUNSEL), FOR PETITIONERS-APPELLANTS.
NATHANIEL J. KUZMA, GENERAL COUNSEL, BUFFALO (MARY B. SCARPINE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners, who are teachers and professional staff employed by respondent, commenced this CPLR article 78 proceeding seeking, inter alia, mandamus to compel respondent to offer courses and sequences in the arts during the school day and equitably throughout the City School District of the City of Buffalo (District), in accordance with regulations promulgated by the New York State Commissioner of Education. Supreme Court dismissed the petition. Petitioners now appeal.
Contrary to petitioners’ contention, the court properly determined that mandamus to compel does not lie. "A writ of mandamus is an extraordinary remedy that is available only in limited circumstances" ( Alliance to End Chickens as Kaporos v. New York City Police Dept. , 32 N.Y.3d 1091, 1093, 90 N.Y.S.3d 617, 114 N.E.3d 1070 [2018], cert denied ––– U.S. ––––, 139 S. Ct. 2651, 204 L.Ed.2d 285 [2019], reh denied ––– U.S. ––––, 140 S. Ct. 18, 204 L.Ed.2d 1173 [2019] [internal quotation marks omitted]). The writ "is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion" ( Matter of Brusco v. Braun , 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ; see Matter of Maron v. Silver , 14 N.Y.3d 230, 249, 899 N.Y.S.2d 97, 925 N.E.2d 899 [2010], rearg dismissed 16 N.Y.3d 736, 917 N.Y.S.2d 101, 942 N.E.2d 311 [2011] ). Here, the regulations provide, in relevant part, that the District "shall offer students the opportunity to complete a three- or five-unit sequence in ... the arts" ( 8 NYCRR 100.2 [h] [1]) and must provide that opportunity beginning in ninth grade (see 8 NYCRR 100.2 [h] [2]). While the regulations provide that the District must offer students the opportunity for an arts sequence, respondent may exercise discretion in how to do so (see generally Matter of Curry v. New York State Educ. Dept. , 163 A.D.3d 1327, 1330, 82 N.Y.S.3d 632 [3d Dept. 2018] ). Therefore, because the actions that petitioners seek to compel are not ministerial in nature but discretionary, mandamus to compel does not apply (cf. Brusco , 84 N.Y.2d at 680, 621 N.Y.S.2d 291, 645 N.E.2d 724 ; see generally Matter of Doorley v. DeMarco , 106 A.D.3d 27, 34, 962 N.Y.S.2d 546 [4th Dept. 2013] ).
We have reviewed petitioners’ remaining contentions and conclude that they are without merit.