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
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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).