State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 522911 

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MAUREEN ABRAMOSKI et al., 

Appellants,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Respondent.

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Calendar Date: November 18, 2016

Before: Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

__________

Charny & Associates, Rhinebeck (Russell G. Wheeler of

counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Julie M.

Sheridan of counsel), for respondent.

__________

McCarthy, J.

Appeal from an order of the Court of Claims (DeBow, J.),

entered June 1, 2015, which granted defendant's motion for

summary judgment dismissing the claim.

The facts at issue on this appeal are more fully discussed

in a previous case before this Court (Matter of Abramoski v New

York State Educ. Dept., 134 AD3d 1183 [2015], lv dismissed and

denied 27 NY3d 1044 [2016]). Claimants are retired employees of

the West Park Union Free School District Number Two, Town of

Esopus, Ulster County (hereinafter the District). The District

is a special act school district created by special legislation

in 1973 for the purpose of educating children of a residential

treatment facility (see Education Law § 4001 [8]; L 1967, ch 566,

as amended by L 1973, ch 744). Due to a significant decline in
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enrollment, the residential treatment facility announced its

closing in January 2011 and the Board of Education of West Park

Union Free School District (hereinafter the Board) resolved to

dissolve the District. The Board notified the State Education

Department (hereinafter SED) of its decision to cease operation. 

Thereafter, SED informed the Board of its determination that the

close-down tuition rate would not cover certain long-term

contractual obligations, such as claimants' lifetime health and

dental insurance coverage, and eventually the Board stopped

meeting those obligations. This Court has since determined that

SED's determination in that regard was not arbitrary, capricious

or affected by an error of law (Matter of Abramoski v New York

State Educ. Dept., 134 AD3d at 1185).

Meanwhile, in a CPLR article 78 proceeding and plenary

action initiated by claimants, Supreme Court (McNamara, J.)

issued an order of default judgment against the Board and the

District's superintendent awarding past and future compensatory

damages, plus postjudgment interest, in the amount of $515,357.06

for claimant Maureen Abramoski and $216,687.45 for claimant

Joanne Petrelli as to their breach of contract claims regarding

their insurance coverage. Now, in this parallel Court of Claims

action, claimants seek monetary damages from defendant for the

cost of obtaining alternative insurance coverage, on allegations

of, among other things, tortious interference with petitioners'

contracts with the District. Thereafter, the Court of Claims

(DeBow, J.) granted defendant's motion for summary judgment

dismissing the claim. Claimants appeal, and we affirm. 

The Court of Claims properly granted defendant's motion for

summary judgment. The courts of this state have uniformly

rejected tortious interference claims when the alleged

interference is a discretionary act taken by a public official in

performance of public duties that are "justifiable pursuant to

statutory command" (Cristo Bros. v Troy Urban Renewal Agency, 116

AD2d 793, 794 [1986], affd for reasons stated below 68 NY2d 819

[1986]; see Tango v Tulevech, 61 NY2d 34, 40 [1983]; Montano v

City of Watervliet, 47 AD3d 1106, 1110 [2008]; 4430 N. Bailey,

Inc. v Town of Amherst, 9 AD3d 853, 854 [2004]; Franbilt, Inc. v

New York State Thruway Auth., 290 AD2d 705, 707 [2002]; MLI

Indus. v New York State Urban Dev. Corp., 205 AD2d 998, 999
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[1994]). Here, defendant put forth prima facie evidence that the

only action that SED took that affected claimants' contracts was

its determination that the close-down tuition rate would not

cover certain outstanding long-term debt obligations of the

District, such as claimants' insurance. Statute and regulation

tasked the Commissioner of Education to make a discretionary

determination as to the costs covered by the close-down tuition

rate (see Education Law § 4405 [4] [a]; 8 NYCRR 200.9 [f] [1]

[i]). As claimants' submissions failed to raise an issue of fact

as to whether SED made a discretionary determination that was

justified pursuant to statutory command, the court properly

granted defendant's motion for summary judgment dismissing the

claim (see Montano v City of Watervliet, 47 AD3d at 1110; 4430 N.

Bailey, Inc. v Town of Amherst, 9 AD3d at 854; Franbilt, Inc. v

New York State Thruway Auth., 290 AD2d at 707; MLI Indus. v New

York State Urban Dev. Corp., 205 AD2d at 999; Cristo Bros. v Troy

Urban Renewal Agency, 116 AD2d at 794; see generally Matter of

Abramoski v New York State Educ. Dept., 134 AD3d at 1185-1186). 

Claimants' remaining arguments have been considered and are

without merit. 

Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court