IN RE: BOARD OF EDUCATION OF the NEWBURGH ENLARGED CITY SCHOOL DISTRICT (2023)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Public Employment Relations Board finding that petitioner had committed an improper employer practice.

Petitioner commenced this CPLR article 78 proceeding seeking annulment of a determination made by respondent Public Employment Relations Board (hereinafter PERB).  Although respondent Newburgh Teachers’ Association answered, PERB moved to dismiss the petition in a pre-answer motion.  PERB asserted therein what it believed to be the proper standard of review and argued for dismissal of the petition based on that standard.  Supreme Court disagreed with PERB's argument as to the applicable standard of review and otherwise transferred the proceeding to this Court.

As an initial matter, PERB contends that Supreme Court erred in transferring the proceeding before ruling on its motion.  In the court's transfer order, the court rejected PERB's argument concerning the standard of review.  The court, however, did not address that part of PERB's motion seeking dismissal of the petition nor does it appear that it granted or denied PERB's motion.  Notwithstanding the foregoing, once a proceeding is transferred to this Court, we are empowered to dispose of all issues raised therein (see CPLR 7804[g];  Matter of 125 Bar Corp. v. State Liq. Auth. of State of N.Y., 24 N.Y.2d 174, 180, 299 N.Y.S.2d 194, 247 N.E.2d 157 [1969];  Matter of Vito v. Jorling, 197 A.D.2d 822, 825 n., 603 N.Y.S.2d 64 [3d Dept. 1993]).  Accordingly, remittal for resolution of PERB's motion is unnecessary.

A respondent in a CPLR article 78 proceeding may assert an objection in point of law in either an answer or a pre-answer motion to dismiss (see CPLR 7804[f];  Matter of Lally v. Johnson City Cent. Sch. Dist., 105 A.D.3d 1129, 1130, 962 N.Y.S.2d 508 [3d Dept. 2013]).  “An objection in point of law is not any legal issue raised in the proceeding, but is limited to threshold objections of the kind listed in CPLR 3211(a) which are capable of disposing of the case without reaching the merits” (Matter of Hull–Hazard, Inc. v. Roberts, 129 A.D.2d 348, 350, 517 N.Y.S.2d 824 [3d Dept. 1987] [citation omitted], affd 72 N.Y.2d 900, 532 N.Y.S.2d 748, 528 N.E.2d 1221 [1988];  see Matter of G & G Shops, Inc. v. New York City Loft Bd., 193 A.D.2d 405, 405, 597 N.Y.S.2d 65 [1st Dept. 1993]).  In its motion, PERB maintained that the arbitrary and capricious standard was the correct standard by which to assess its determination and that, upon the application of such standard, the petition should be dismissed.¹  PERB, however, did not cite to, or rely upon, any “threshold objection[ ] of the kind listed in CPLR 3211(a)” in its motion (Matter of Hull–Hazard, Inc. v. Roberts, 129 A.D.2d at 350, 517 N.Y.S.2d 824).  Even assuming, without deciding, that the arbitrary and capricious standard is the correct standard, the arbitrary and capricious standard is not the type of objection in point of law that could terminate the proceeding without reaching the merits (see Matter of OTR Media Group, Inc. v. Board of Stds. & Appeals of the City of N.Y., 132 A.D.3d 607, 607, 18 N.Y.S.3d 336 [1st Dept. 2015]).  To the contrary, such standard is used to assess the merits of the petition.  By relying on the arbitrary and capricious standard, PERB improperly seeks a merits-based determination of the petition in the context of a pre-answer motion.  As such, the motion is denied.²

To that end, following the denial of a respondent's motion to dismiss a CPLR article 78 petition, “the court shall permit the respondent to answer, upon such terms as may be just” (CPLR 7804[f]).  Although remittal for such purpose would be unnecessary where “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” (Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, 102, 480 N.Y.S.2d 190, 469 N.E.2d 511 [1984]), this case is not one of those instances.  Accordingly, the matter must be remitted so that PERB may interpose an answer to the petition (see Matter of Kickertz v. New York Univ., 25 N.Y.3d 942, 944, 6 N.Y.S.3d 546, 29 N.E.3d 893 [2015];  Matter of Bethelite Community Church, Great Tomorrows Elementary School v. Department of Envtl. Protection of City of N.Y., 8 N.Y.3d 1001, 1002, 839 N.Y.S.2d 440, 870 N.E.2d 679 [2007]).  Finally, notwithstanding the fact that Newburgh Teachers’ Association joined issue and that the parties have briefed the merits of the petition, we express no opinion thereon.

ORDERED that the motion by respondent Public Employment Relations Board is denied, without costs, and matter remitted to the Supreme Court to permit said respondent to serve an answer within 20 days of this Court's decision.

FOOTNOTES

1.   Although not included in the record on appeal, we take judicial notice of PERB's supporting memorandum of law that was e-filed in the New York State Courts Electronic Filing system in Supreme Court (see Corona v. HHSC 13th St. Dev. Corp., 197 A.D.3d 1025, 1026 n., 153 N.Y.S.3d 448 [1st Dept. 2021]).

2.   To the extent that PERB argues that the petition failed to state a cause of action, this argument is improperly raised for the first time on appeal (see Matter of Doe v. Trustees of Union Coll., 195 A.D.3d 1216, 1218, 150 N.Y.S.3d 347 [3d Dept. 2021]).  Even if preserved, we would find it to be without merit.

Aarons, J.

Garry, P.J., Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.