STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

________________________________________

LEWIS EVANS,


Plaintiff,


vs. Index No.

H 11,724

BOARD OF EDUCATION

CLYMER CENTRAL SCHOOLS,


Defendant.

________________________________________


WALSH & FLEMING, P.C.

(Andrew P. Fleming, Esq.

of Counsel) for Plaintiff


BECKSTROM AND PLUMB

(John K. Plumb, Esq.

of Counsel) for Defendant



DECISION and ORDER



GERACE, J.



Plaintiff seeks a preliminary injunction pursuant to CPLR


6301 enjoining the Clymer Board of Education from proceeding


with any vote or election on June 27, 1995, regarding a


proposed building reconstruction pending completion of a


boundary alteration proceeding now underway. Plaintiff claims


the vote would render moot the cause of action alleged in the


complaint which seeks the enjoinder.



In cases where a plainly invalid ordinance that affects


property rights is challenged, or an illegal bond issue is


underway, or making of illegal payments, courts will issue


injunctions against municipalities. See SCHRAGER v. ALBANY,


197 MISC 903, 99 NYS2d 697; HORNSTEIN V LISTER, 276 AppDiv


1085, affd 301 N.Y. 587.



Otherwise, there is a great reluctance on the part of the


Courts to interfere with local government and the decisions of


local officials with respect to local problems, particularly


by preliminary injunction on application of a well meaning or


disgruntled member of the local community. CARMODY-WAIT


Vol.10, Page 570, Sec. 34; CARMODY-WAIT 2ND, Vol.12, Sec.


78.32; See PEOPLE VS CANAL BOARD, 55 NY 390; EDWARDS MOTOR


TRANSIT CO v WALLENDER, 61 NYS2d 93; BORO HALL CORP v


IMPELLITTERI, 283 AppDiv 889, 130 NYS2d 6.



There is no claim of illegality here. Plaintiff wants


time to process the petition for modification of the boundary


lines between the Clymer and Sherman school district to


include some 40% of the Town of Mina.



The rationale for seeking a change in the boundaries is


that he and some 15 other residents "are of like mind on


educational issues and prospects with the people and board of


the Sherman District, and completely at odds with the Clymer


District and particularly its board."



That desire, no matter how well intentioned, does not

in and of itself provide a basis for an injunction, temporary


or otherwise.



Plaintiff's counsel states that for "the past several


months" he had been working with the plaintiff and others in


a boundary alteration proceeding. That petition is dated May


15, 1995, but was not presented until May 22, 1995, two weeks


after defendant adopted its May 8, 1995 resolution to schedule


a vote on a proposition authorizing reconstruction and


improvements to the Clymer School building and published


notices May 12, and nearly 6 months after the Board indicated


it was going to proceed with the project.



The fact that the Clymer board was working on the


building project for months was a matter of public knowledge


long before the resolution of May 8, 1995. In fact, plaintiff


served on a citizens committee that dealt with the project on


behalf of the board for several months and was well aware of


the Board's intention to proceed with it long before May 8;


and weeks, if not months before January 1995.



So, even if there was a basis for an injunction, laches


would be a basis for denial. De CANDIDO v. YOUNG STARS,INC.,


10 AD2d 922, 200 NYS 2d 695.



Lastly, the Court is not convinced plaintiff will suffer


any irreparable harm. If the voters reject the building

project, the board will have to re-assess expansion and may


even be compelled to revisit merger.



On the other hand, if the voters approve the building


project, there will be time for resolution of the boundary


petition before the school district is committed to


construction contract because construction details, plans and


specifications have yet to be prepared; and the school board


will not be in a position to let the project out for bids


before February, 1996.



This means there will be time for the parties, the


district superintendent, and the Commissioner of Education to


address the petition for boundary changes, and, if the


boundary alterations is approved, time for board to reconsider


the scope of the building project before substantial dollars


are committed.



A weighing of the equities clearly tips the scales in


favor of the Clymer School District. The children, the


teachers, the school district, the taxpayers, stand to lose


more by a temporary injunction than plaintiff would lose by a


denial, especially when plaintiff has not shown any


irreparable harm, but has merely made conclusionary claims. A


court cannot issue a preliminary injunction based on bare


allegations of irreparable harm.


Plaintiff must establish a convincing justification for


a preliminary injunction; a strong showing in affidavits of a


likelihood of success; and then, convincingly demonstrate that


he will be irreparably damaged. SIEGEL, NEW YORK PRACTICE,


Section 328. Plaintiff has not meet these tests.



The Court hereby vacates the Temporary Restraining Order


of June 8, 1995, denies Plaintiff's motion for a preliminary


injunction, and dismisses the complaint, without costs to


either party.



The Court directs that defendant, regardless of the


outcome of the election, expeditiously address the May 15,


1995, petition of plaintiff and others for alteration of the


Clymer School District boundary lines.



THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER


ORDER SHALL BE NECESSARY.



Dated: June 21, 1995

Mayville, New York



 

 

JOSEPH GERACE

Justice of Supreme Court