Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

Monday, September 28, 2015

An individual must have standing to bring a proceeding pursuant to Education Law §306

An individual must have standing to bring a proceeding pursuant to Education Law §306
Matter of Luciano, Decisions of the Commissioner of Education, Decision No. 16,828

The critical issue in this appeal concerned the residence of the individual filing a  proceeding pursuant to §306 of the Education Law as, in the words of the Commissioner of Education, “a non-resident does not have standing to bring a proceeding pursuant to Education Law §306 to remove a school official in a district in which he or she does not reside.”

Antonio Luciano file an application seeking to have the Commissioner remove certain members of the school board from their respective positions. The Commissioner found that Luciano lacked standing to file such an application.

The Commissioner explained that an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

The decision states that Luciano’s application failed to allege that he was a resident of the district but merely stated that he is “a taxpayer and resident of Rockland County, and a citizen of the State of New York” and that his child “formerly attended schools” within the district. The school district raised the issue of Luciano’s “non-resident” status as an affirmative defense, contending that Luciano application must be dismissed for lack of standing.  Significantly, Luciano failed to file a reply refuting the school district’s affirmative defenses.

On this point the Commissioner noted that §275.14 of the Commissioner’s regulations states that [1] a petitioner shall reply to each affirmative defense; and [2] the result of a petitioner’s failure to do so is that the facts alleged are deemed to be true. However, said the Commissioner, the Commissioner was not required to accept a respondents’ legal conclusions regarding the affirmative defenses; and a legal analysis of the admitted facts with respect to the affirmative defenses must be performed.

In his legal analysis of the matter, the Commissioner found that when Luciano filed his memorandum of law, he also requested permission to file an affirmation by counsel which included new documentary evidence in further support of his application.  One of the documents was an affidavit by Luciano in which he claims residency within the district. The school district, however, objected to the submission of this additional material arguing that Luciano should not be permitted to bolster his defective application “this late in the process.”

The Commissioner agreed, ruling that the “procedural rules set forth an orderly process for framing the relevant issues” and the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer. Further, a reply is to be served within 10 days after service of the answer to which it responds.

The Commissioner found that while Luciano was given an opportunity to timely file a reply containing any exhibits or evidence required to refute respondents’ affirmative defenses, he elected not to do so.  Instead, Luciano waited until he filed his memorandum of law to respond to the affirmative defenses by requesting permission to file additional papers, including his affidavit.  
The Commissioner noted that [1] any such additional affidavits, exhibits and other supporting papers “may only be submitted with the prior permission of the Commissioner,” citing 8 NYCRR §276.5 and [2] although this provision permits the submission of additional evidence, “it cannot be used to buttress allegations in the petition.”

The Commissioner found that Luciano offered no explanation or excuse for his delay in filing the additional papers; that his affidavit was executed and dated “an entire month before it was even submitted for consideration.” Because Luciano did not demonstrate good cause for his delay in submitting the additional documentation, the Commissioner ruled that “it is not accepted for consideration.”

In any event, said the Commissioner, “Even if I were to accept the additional papers, [Luciano’s] affidavit fails to prove that he is a district resident with standing to maintain this proceeding. Although his residency is a disputed issue, the affidavit is devoid of any specificity or particulars whatsoever. In the affidavit, [Luciano] offers blanket statements that he has been a resident of the district for 21 years and pays taxes in the district.”

As Luciano failed to provide his address or any documentary evidence establishing his residency within the district, other than his own conclusory statement, and without any evidence of his residence, the Commissioner ruled that his application “must be dismissed for lack of standing.”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.