Calendar Date: June 5, 2018Before: Garry, P.J., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________Education Law Center, Newark, New Jersey (Matthew Schock ofO’Melveny & Myers LLP, New York City, of counsel), forappellants.Barbara D. Underwood, Attorney General, Albany (Robert M.Goldfarb of counsel), for New York State Education Department andothers, respondents.Morgan, Lewis & Bockius LLP, New York City (StephanieSchuster of counsel), for East Ramapo Central School District,respondent.__________Aarons, J.Appeal from a judgment of the Supreme Court (Elliott III,J.), entered September 26, 2017 in Albany County, which, in aproceeding pursuant to CPLR article 78, granted respondents’motion to dismiss the petition.Petitioners are the parents of children who attend variousschools within respondent East Ramapo Central School District(hereinafter the district). Petitioners commenced this CPLRarticle 78 proceeding against respondents New York StateEducation Department, New York State Board of Regents,Commissioner of Education and Chancellor of the Board of Regents(hereinafter collectively referred to as respondents), claimingthat the East Ramapo Board of Education (hereinafter the Board)mismanaged the district’s finances and, as a consequence of suchmismanagement, deprived students within the district of a soundbasic education. According to the petition, a commissionedreport evaluating the district concluded, among other things,that the Board favored students who attended private schoolswithin the district, exercised poor fiscal management anddemonstrated a lack of transparency. The commissioned reportmade recommendations on how to remedy any identifieddeficiencies. The petition also referenced other reports,including one prepared by monitors appointed by the EducationDepartment to assess the Board’s activities. Petitioners allegedthat this report recommended changes to the Board’s governanceand fiscal management, among other things. Petitioners requesteda writ of mandamus compelling “[r]espondents to intervene andtake such action as may be necessary and appropriate to remedythe ongoing violation of students’ constitutional right to asound basic education in East Ramapo” and ordering respondents toimplement the recommendations made in the various reportsreferenced in the petition. Respondents moved to dismiss thepetition arguing, among other things, that petitioners lackedstanding to commence the proceeding and that mandamus to compeldid not lie because petitioners sought the performance of anonministerial act. The district, which intervened in theaction, submitted a memorandum in support of respondents’ motion.Supreme Court granted the motion and petitioners now appeal.As an initial matter, respondents contend that the appealis moot in view of remedial legislation that came into effect in2016 after the commencement of this proceeding. “[A]n appealwill be considered moot unless the rights of the parties will bedirectly affected by the determination of the appeal and theinterest of the parties is an immediate consequence of thejudgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714[1980]). Among other things, the 2016 remedial legislation, ofwhich we take judicial notice (see CPLR 4511 [a]), continued theuse of monitors to attend all of the Board’s meetings and alsoappropriated up to $3,000,000 to the district to enhance theeducational opportunities for the district’s students (see L2016, ch 89, §§ 4, 5). On this latter point, the district wouldreceive funding provided that it, among other things, developed along-term strategic academic and fiscal plan addressing areas ofneed in consultation with the monitors and that the plan beapproved by the Commissioner (see L 2016, ch 89, § 5 [b]).1To that end, respondents note that the Commissioner approved thedistrict’s proposed 2017-2018 budget and that the monitorssubmitted a report delineating the various improvements made.We agree with respondents that the remedial legislationcited by them renders moot that part of the petition requestingthat respondents intervene and take action in the district’saffairs. Petitioners, however, also requested that respondentstake specific action upon intervention — namely, adopting therecommendations in the reports cited in the petition.Respondents do not indicate whether these specificrecommendations have been effectuated and, in fact, recognizethat the remedial legislation did not give the Commissioner theauthority to take all of the actions that petitioners seek tocompel. Accordingly, the appeal has not been rendered whollymoot (see Matter of City of Glens Falls v Town of Queensbury, 90AD3d 1119, 1120-1121 [2011]).Turning to the issue of whether petitioners had standing tocommence this proceeding, “[s]tanding is a thresholddetermination, resting in part on policy considerations, that aperson should be allowed access to the courts to adjudicate themerits of a particular dispute that satisfies the otherjusticiability criteria” (Society of Plastics Indus. v County ofSuffolk, 77 NY2d 761, 769 [1991]; see Matter of La Barbera v Townof Woodstock, 29 AD3d 1054, 1055 [2006], lv dismissed 7 NY3d 844[2006]). Petitioners bear the burden of showing that theysuffered an injury-in-fact and that the claimed injury is withinthe zone of interests sought to be promoted by the statute orconstitutional provision (see Society of Plastics Indus. v Countyof Suffolk, 77 NY2d at 772-773; Matter of Town of Brunswick vCounty of Rensselaer, 152 AD3d 1108, 1109 [2017]). As discussed,petitioners alleged that the Board, through “mismanagement andneglect,” failed to provide the necessary resources in order fortheir children, who are attending schools within the district, toreceive a sound basic education. They further alleged thatvarious reports made recommendations to remedy the alleged“mismanagement and neglect” and that respondents failed toimplement these recommended measures. In our view, petitionershave sufficiently alleged a threatened harm to the children’sconstitutional right to receive a sound basic education basedupon respondents’ alleged failure to take corrective action asidentified in the petition’s cited reports (see Davids v State ofNew York, 159 AD3d 987, 992 [2018]; cf. Brown v State of NewYork, 144 AD3d 88, 93 [2016]).Notwithstanding the foregoing, we conclude that thepetition was properly dismissed. Mandamus to compel is “anextraordinary remedy that lies only to compel the performance ofacts which are mandatory, not discretionary, and only when thereis a clear legal right to the relief sought” (Matter of Shaw vKing, 123 AD3d 1317, 1318-1319 [2014] [internal quotation marksand citation omitted]). It is beyond cavil that students areentitled to a sound basic education (see NY Const art XI). Themanner in which such goal is achieved, however, involvesdiscretionary decisions by respondents (see Matter of Hassig vNew York State Dept. of Health, 5 AD3d 846, 848 [2004]; seegenerally Matter of Maron v Silver, 14 NY3d 230, 249 [2010]). Assuch, to the extent that petitioners seek to compel respondentsto implement specific recommendations set forth in the reportscited in the petition — an act involving “the exercise ofreasoned judgment which could typically produce differentacceptable results” (New York Civ. Liberties Union v State of NewYork, 4 NY3d 175, 184 [2005] [internal quotation marks andcitation omitted]) — they are not entitled to such relief. Inlight of our determination, the parties’ remaining contentionsare academic.Garry, P.J., Egan Jr., Rumsey and Pritzker, JJ., concur.ORDERED that the judgment is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
