                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 18, 2014                   518419
________________________________

In the Matter of LISA SHAW
   et al., on Behalf of
   Themselves and their
   Children,
                    Appellants,             MEMORANDUM AND ORDER
      v

JOHN B. KING, as Commissioner
   of Education, et al.,
                    Respondents.
________________________________


Calendar Date:   October 15, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


      Wendy Lecker, Campaign for Fiscal Equality, Newark, New
Jersey, for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondents.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Devine, J.),
entered October 23, 2013 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to compel respondent Commissioner of Education to,
among other things, schedule certain public hearings.

      Petitioners are the parents of students attending schools
within the City School District of the City of New York
(hereinafter the District), which "has at least one school
identified as in corrective action or restructuring status or
                              -2-                518419

as a school requiring academic progress" (Education Law § 211-d
[1] [a]). The District is accordingly entitled to receive
additional state funding, but must also prepare a "[c]ontract for
excellence" detailing how those monies will be spent (Education
Law § 211-d [1] [a]; [2] [b]; [3]; see Mulgrew v Board of Educ.
of the City School Dist. of the City of N.Y., 88 AD3d 72, 75
[2011]). The contracts are "developed through a public process"
that, in the case of the District, includes a public hearing
within every county of the City (Education Law § 211-d [4] [a];
see Education Law § 211-d [4] [b]). Education Law § 211-d (5)
requires respondent Commissioner of Education to approve each
contract and certify that the additional funding will be spent in
a permissible manner.

      Petitioners view the timeline established by the
Commissioner for the development and approval of the District's
contract for the 2012-2013 school year as preventing meaningful
public participation and, as such, violative of the terms of
Education Law § 211-d and its implementing regulations.
Petitioners accordingly commenced this CPLR article 78 proceeding
to compel the Commissioner to create a contract approval
timetable that began the public process "in May or June for the
2013-2014 school year and all subsequent school years," to ensure
that the public process preceded submission of a proposed
contract to the Commissioner for approval, and to require that a
finalized contract be submitted for approval prior to the start
of the school year. Supreme Court dismissed the petition,
determining that the petition was moot insofar as it dealt with
the 2013-2014 school year and that, with regard to subsequent
school years, the timeline proposed by petitioners was not
required by Education Law § 211-d. Petitioners now appeal.

      We affirm. Petitioners seek mandamus to compel, "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 Johnson v
Corbitt, 87 AD3d 1214, 1215 [2011], lv denied 18 NY3d 802 [2011];
accord Matter of Justice v Evans, 117 AD3d 1365, 1366 [2014];
Matter of Johnson v Fischer, 104 AD3d 1004, 1005 [2013]).
Nothing in Education Law § 211-d explicitly requires the contract
development process to operate upon a set timeline and,
                              -3-                  518419

consistent with that silence, the implementing regulations direct
that a contract be "submitted pursuant to a timeline . . . as
prescribed by the [C]ommissioner" (8 NYCRR 100.13 [b] [1]).
Petitioners assert that the language of the statute suggests that
a more specific timeline was intended. It suffices to say,
however, that we cannot read a statute that is silent with regard
to timing as requiring the Commissioner to always impose the
highly specific timeline proposed by petitioners. Even
respondents admit that it "might be preferable" for public review
and approval of a contract to occur prior to the commencement of
the school year in which the funds will be spent. As such,
petitioners are free to challenge a future timeline set by the
Commissioner if it strays from that practice without reason (see
CPLR 7803 [3]). In the absence of a clear expression of intent
in the statute to require a set timeline in all instances,
however, petitioners have not made the requisite showing that
"specific statutory authority mandating performance in a specific
manner" exists that would entitle them to the relief requested
(Matter of Brown v New York State Dept. of Social Servs., 106
AD2d 740, 741 [1984], lv denied 65 NY2d 604 [1985]; accord New
York Civ. Liberties Union v State of New York, 3 AD3d 811, 814
[2004], affd 4 NY3d 175 [2005]).

     Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
