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Procedure for Testing Adequacy of Causes of Action in Article 78 Petition; Criteria for Bad Faith Abolishment of Position

The Third Department upheld Supreme Court’s determination that the petitioner had stated a cause of action in his Article 78 proceeding for bad faith abolishment of his tenured Assistant Superintendent position.  The Third Department noted that the proper criteria for analysis in this Article 78 proceeding is the same as in a pre-answer motion to dismiss under CPLR 3211:

In a CPLR article 78 proceeding, objections in point of law may be raised either through  a pre-answer motion  to dismiss or – as here – in the verified answer  (see CPLR  7804  [f]). Such objections are appropriately afforded review similar in nature to that applied to defenses raised in a pre-answer motion to dismiss pursuant to CPLR 3211 (a).  *  *  *

A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it “has made a good faith determination based on economic considerations” … . *  *  * We agree with Supreme Court that [petitioner’s] specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of his position “was motivated by reasons other than a desire to promote institutional efficiency and economy” and thus state a cause of action … .  Matter of Lally v Johnson City School District, 515488, 3rd Dept 4-4-13

 

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