State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522406 

________________________________

In the Matter of SHERIAN

THORNTON,

Appellant,

v MEMORANDUM AND ORDER

SAUGERTIES CENTRAL SCHOOL

DISTRICT et al.,

Respondents.

________________________________

Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

__________

Cooper Erving & Savage, LLP, Albany (Carlo A.C. de Oliveira

of counsel), for appellant.

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell

Junction (Bryan D. Duroy of counsel), for Saugerties Central

School District, respondent.

Guercio & Guercio, LLP, Latham (Erin M. O'Grady-Parent of

counsel), for Ulster County Board of Cooperative Educational

Services, respondent.

__________

Mulvey, J.

Appeal from a judgment of the Supreme Court (Work, J.),

entered September 16, 2015 in Ulster County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to compel reinstatement to her former position. 

Petitioner was employed by respondent Saugerties Central

School District (hereinafter District) for approximately five
-2- 522406 

years and was responsible for, among other things, maintaining

the District's student and data management systems. Petitioner

had no supervisory duties, and the minimum qualifications for her

position did not require any specialized licenses. In early

2012, the District and respondent Ulster County Board of

Cooperative Educational Services (hereinafter BOCES) engaged in

discussions regarding ways to provide more cost effective and

efficient data management services to the District. Thereafter,

the District purchased data management services from BOCES. As a

result, the District's Board of Education voted to eliminate

petitioner's position, and her job duties were assumed by

existing staff members of BOCES. Petitioner demanded that she be

transferred to BOCES to perform her former job duties pursuant to

Civil Service Law § 70 (2). The District denied her request. 

Petitioner then commenced this proceeding seeking

reinstatement to her former position, transfer of her employment

to BOCES and reinstatement of her employee benefits. BOCES filed

an answer with objections in point of law and the District filed

a pre-answer motion to dismiss. Supreme Court (Zwack, J.)

dismissed the petition on the merits, concluding that petitioner

failed to establish a clear right to the relief sought because

she was not a "necessary" employee within the meaning of Civil

Service Law § 70 (2). Upon appeal to this Court, we reversed and

remitted the matter to Supreme Court, ruling, among other things,

that "Supreme Court erred in addressing the merits under this

procedural posture" (121 AD3d 1253, 1254 [2014]). 

Upon remittal, the District served an answer. Petitioner

then moved for discovery pursuant to CPLR 408 and 3107 seeking to

depose Karen Bartash and Denise Olsen, two BOCES staff members,

who ultimately became responsible for the District's data

management. Supreme Court (Melkonian, J.) denied petitioner's

motion on the ground that "the depositions of these staff members

[were] neither material nor necessary to the prosecution of

petitioner's claims" because the record revealed that BOCES "had

sufficient staff to provide the data management services and

ha[d] been providing [such] services for the [District] since the

abolition of petitioner's position without interruption." 

Petitioner then moved for a trial pursuant to CPLR 7804 (h) and

Supreme Court (Work, J.) denied the motion and dismissed the
-3- 522406 

petition on the merits, holding that there were no questions of

fact warranting a trial and that petitioner failed to establish

"a clear legal right to the relief requested." Petitioner

appeals.

We affirm. Petitioner argues that Supreme Court erred in

denying her motion for a trial and improperly dismissed the

petition, as triable questions of fact remain concerning who

absorbed her job functions and when, and whether such BOCES staff

members had ever performed those job functions before the

transfer of petitioner's duties to BOCES. Respondents contend

that petitioner was not entitled to a transfer of her job

function under Civil Service Law § 70 (2) because the record

establishes that BOCES had sufficient qualified staff available

to perform the transferred duties, and petitioner failed to

establish the existence of material facts in dispute.

Mandamus to compel, sought by petitioner, is "an

extraordinary remedy that lies only to compel the performance of

acts which are mandatory, not discretionary, and only when there

is a clear legal right to the relief sought" (Matter of Shaw v

King, 123 AD3d 1317, 1318-1319 [2014] [internal quotation marks

and citation omitted]; see Matter of Justice v Evans, 117 AD3d

1365, 1366 [2014]). Civil Service Law § 70 (2) provides, in

relevant part: "Upon the transfer of a function . . . from one

department or agency of the state to another department or agency

of the state, . . . provision shall be made for the transfer of

necessary officers and employees who are substantially engaged in

the performance of the function to be transferred"1 (emphasis

added). This language imposes a mandatory duty (cf. Matter of

Haverstraw Vil. Policemen's Benevolent Assn., Inc. v Town of

Haverstraw, 41 AD3d 847, 847 [2007]). Thus, the ultimate issue

1 On petitioner's prior appeal, we held that "[t]he

District's decision to cease providing its own data management

services and purchase such services from BOCES constituted the

'transfer of a function'" within the meaning of Civil Service Law

§ 70 (2) (Matter of Thornton v Saugerties Cent. Sch. Dist., 121

AD3d at 1255). 
-4- 522406 

is whether petitioner has "established a right to the relief

sought which is 'so clear as not to admit of reasonable doubt or

controversy'" (Matter of Vergata v Superintendent of Bldgs. of

Vil. of Westbury, 108 AD2d 750, 750 [1985], quoting Matter of

Burr v Voorhis, 229 NY 382, 387 [1920]; see Matter of Carpenter v

City of Troy, 192 AD2d 920, 921 [1993]). An employee is eligible

for a transfer pursuant to Civil Service Law § 70 (2) only if he

or she is a "necessary . . . employee[]" – i.e., if the agency or

the department to which his or her duties are being transferred

does not have sufficient staff at the time of the transfer to

perform the duties being transferred (see Matter of Hellner v

Board of Educ. of Wilson Cent. School Dist., 78 AD3d 1649, 1651

[2010]; see also Matter of Thornton v Saugerties Cent. Sch.

Dist., 121 AD3d at 1255). 

BOCES submitted an affidavit of one of its employees, Lisa

Pullaro. Pullaro attested that she had been employed by BOCES

since July 1987, and that her career had "focused on application

training and support of administrative support systems, student

management systems and data collection and reporting systems" and

that, on or about February 10, 2012, she and Katy Colletti, a

data support specialist, began "supervising and implementing"

data management services for the District, providing data

management services three days a week. Pullaro stated that the

assumption of the data management services was an extension of

the duties already assigned to BOCES and that BOCES did not hire

any new employees to provide such services to the District. She

further stated that, since July 1, 2012, the data management

services to the District were being provided by two other

existing employees of BOCES, namely, Bartash and Olsen. 

According to the Pullaro affidavit, BOCES staff assigned to the

District "are qualified to provide the student and data

management services purchased by [the District]." BOCES also

submitted two affidavits of Charles Khoury, Superintendent of

Schools for BOCES, who averred that BOCES "had sufficient staff

to perform the functions of the transferred work." Finally, Seth

Turner, Superintendent of Schools for the District, stated in his

affidavit that the decision to eliminate petitioner's position

was "due to budgetary constraints" and that "[t]he District did

not hire a new employee to fill her position, and her job duties

were absorbed by two existing staff members of [BOCES]." In her
-5- 522406 

opposing affidavit, petitioner failed to controvert the facts

stated in the affidavits submitted by respondents, and her

verified petition asserts, in only conclusory fashion and without

indicating the basis of her knowledge, that BOCES did not have

sufficient staff to perform the duties transferred. 

This case does not represent "a situation where it is

impossible to determine the matter upon the submitted papers

alone" (Matter of Ames v Johnston, 169 AD2d 84, 85 [1991]). 

Given that the affidavits submitted by respondents convincingly

establish that BOCES had sufficient staff to perform the

transferred function, and in view of petitioner's failure to

counter those factual assertions, no trial was required (see

Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]; Matter of

LaCorte Elec. Constr. & Maintenance v New York State Dept. of

Social Servs., 243 AD2d 1029, 1031 [1997]). Based on the record

before us, we find that respondents sufficiently demonstrated

that petitioner was not a necessary employee within the purview

of Civil Service Law § 70 (2) because, at the time of the

transfer of her job function, BOCES had sufficient staff to

perform such duties (cf. Matter of Hellner v Board of Educ. of

Wilson Cent. School Dist., 78 AD3d at 1651). Having failed to

sustain the burden of demonstrating that she was a necessary

employee, petitioner has not "established a right to the relief

sought which is 'so clear as not to admit of reasonable doubt or

controversy'" (Matter of Vergata v Superintendent of Bldgs. of

Vil. of Westbury, 108 AD2d at 750, quoting Matter of Burr v

Voorhis, 229 NY at 387). Accordingly, Supreme Court properly

dismissed the petition (see Matter of Dietz v Board of Educ. of

Rochester City Sch. Dist., 98 AD3d 1251, 1252 [2012], lv denied

20 NY3d 857 [2013]). We have reviewed petitioner's remaining

contention and find it to be without merit.2

2 Petitioner's reliance on Education Law § 3014-a in

support of her argument that a transfer of her position was

required is misplaced inasmuch as that statute does not provide

for any transfer rights for non-teaching positions (see Matter of

Vestal Empls. Assn., NEA/NY, NEA v Public Empl. Relations Bd. of

State of N.Y., 94 NY2d 409, 413, 416 [2000]; Matter of Hellner v

Board of Educ. of Wilson Cent. School Dist., 78 AD3d at 1650-
-6- 522406 

Garry, J.P., Egan Jr., Rose and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1651).