PINNACLE CHARTER SCHOOL WILLIAM PRESTON AS PARENT AND NATURAL GUARDIAN OF WILLIAM PRESTON JR AND DEONDRA PRESTON INFANTS TAMERA HOOD AS PARENT AND NATURAL GUARDIAN OF JAYLIN JOHNSON AN INFANT ZAKEA WILLIAMS AS PARENT AND NATURAL GUARDIAN OF TEARA WILLIAMS TYREE WILLIAMS AND ANTOINE RUSHING JR INFANTS AND ERIKA WATKINS AS PARENT AND NATURAL GUARDIAN OF DIONA LYNNE WATKINS AN INFANT PLAINTIFFS RESPONDENTS APPELLANTS v. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK NEW YORK STATE EDUCATION DEPARTMENT AND JOHN KING JR IN HIS CAPACITY AS COMMISSIONER OF EDUCATION DEFENDANTS APPELLANTS RESPONDENTS

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Supreme Court, Appellate Division, Fourth Department, New York.

PINNACLE CHARTER SCHOOL, WILLIAM A. PRESTON, AS PARENT AND NATURAL GUARDIAN OF WILLIAM A. PRESTON, JR. AND DEONDRA PRESTON, INFANTS, TAMERA HOOD, AS PARENT AND NATURAL GUARDIAN OF JAYLIN JOHNSON, AN INFANT, ZAKEA WILLIAMS, AS PARENT AND NATURAL GUARDIAN OF TEARA WILLIAMS, TYREE WILLIAMS AND ANTOINE RUSHING, JR., INFANTS, AND ERIKA WATKINS, AS PARENT AND NATURAL GUARDIAN OF DIONA LYNNE WATKINS, AN INFANT, PLAINTIFFS–RESPONDENTS -APPELLANTS, v. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT AND JOHN B. KING, JR., IN HIS CAPACITY AS COMMISSIONER OF EDUCATION, DEFENDANTS–APPELLANTS–RESPONDENTS.

CA 12–02119

Decided: July 05, 2013

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS. RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (LISA A. COPPOLA OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS–APPELLANTS.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered July 5, 2012.   The order, among other things, granted plaintiffs' motion for a preliminary injunction and granted in part defendants' cross motion by dismissing the fourth cause of action.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying plaintiffs' motion for a preliminary injunction, vacating the preliminary injunction, and granting defendants' cross motion in its entirety and dismissing the complaint, and as modified the order is affirmed without costs.

Supreme Court erred in granting plaintiffs' motion seeking a preliminary injunction enjoining enforcement of the Board of Regents' determination denying Pinnacle's application to renew its charter and permitting Pinnacle to operate as an authorized charter school, inasmuch as plaintiffs failed to demonstrate a likelihood of success on the merits with respect to any of their claims (see Doe v. Axelrod, 73 N.Y.2d 748, 750–751).   To the contrary, the evidence establishes conclusively that plaintiffs have no cause of action.   Thus, although the court properly granted defendants' cross motion to dismiss the complaint for failure to state a cause of action to the extent that it sought dismissal of the fourth cause of action, for negligent misrepresentation, we conclude that the court should have granted defendants' cross motion in its entirety and dismissed the complaint (see generally Kaufman v International Bus. Machs.  Corp., 97 A.D.2d 925, 926–927, affd 61 N.Y.2d 930).   We therefore modify the order accordingly.

The first and second causes of action allege, respectively, that the determination of the Board of Regents violated Pinnacle's due process rights under the State Constitution (N.Y. Const, art I, § 6) and the Federal Constitution (U.S. Const, 14th Amend, § 1).   We agree with defendants that the New York Charter Schools Act (Education Law art 56) creates no constitutionally protected property interest in the renewal of a charter and thus that the first and second causes of action fail to state a cause of action (see Matter of New Covenant Charter School Educ. Faculty Assn. v Board of Trustees of the State Univ. of N.Y., 30 Misc.3d 1205[A], 2010 N.Y. Slip Op 52287[U], *2 [Sup Ct, Albany County 2010];  see generally Board of Regents of State Colls. v Roth, 408 U.S. 564, 577).   Moreover, we note that Pinnacle's charter expressly provided that “[n]othing herein shall require the [Board of] Regents to approve a Renewal Application.”   Contrary to Pinnacle's further allegation, the limitation on administrative review set forth in Education Law § 2852(6) does not effect an unconstitutional denial of due process inasmuch as Pinnacle has no constitutional right to an administrative appeal (see Matter of Wong v. Coughlin, 138 A.D.2d 899, 901).   Absent any indication that the Board of Regents acted illegally, unconstitutionally or in excess of its jurisdiction, moreover, the limitation on judicial review does not implicate Pinnacle's due process rights (see Matter of New York City Dept. of Envtl.   Protection v New York City Civ. Serv. Commn., 78 N.Y.2d 318, 323–324).

Contrary to the court's conclusion with respect to the third cause of action, alleging violation of the State Administrative Procedure Act, we agree with defendants that the Board of Regents was acting pursuant to its discretionary authority when it denied Pinnacle's renewal application, and it was not required to promulgate any rules pursuant to article 2 of the State Administrative Procedure Act with respect to its exercise of such authority (see generally Matter of Alca Indus. v Delaney, 92 N.Y.2d 775, 777–778).   Plaintiffs' contention that the Department's guidelines for charter renewal applications must be promulgated as rules pursuant to State Administrative Procedure Act § 202 was improperly raised for the first time in their reply papers (see Keitel v. Kurtz, 54 AD3d 387, 391;  Sanz v. Discount Auto, 10 AD3d 395, 395).   In any event, that contention lacks merit inasmuch as the guidelines are excluded from the Act's rulemaking requirement (see § 102[2][b] [iv] ).   The charter renewal process, moreover, is not an “adjudicatory proceeding” within the meaning of State Administrative Procedure Act § 102(3), and thus the requirements of section 301(3) are inapplicable.

With respect to the fifth cause of action, even assuming, arguendo, that the individual plaintiffs have standing to allege a violation of the Education Article on behalf of their children enrolled at Pinnacle based upon the alleged failure of the Buffalo School District to offer a sound basic education, we also agree with defendants that plaintiffs fail to state a cause of action for such violation (see generally Paynter v. State of New York, 100 N.Y.2d 434, 439).   In any event, the renewal of Pinnacle's charter would not remedy the alleged violation of the Education Article.

Finally, with respect to plaintiffs' cross appeal, we conclude that the court properly granted that part of defendants' cross motion seeking dismissal of the fourth cause of action, for negligent misrepresentation, inasmuch as plaintiffs did not have a special or privity-like relationship with the Department such that it was required to impart correct information to plaintiffs (see Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 180;  Sample v. Yokel, 94 AD3d 1413, 1414–1415).

Frances E. Cafarell

Clerk of the Court