                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   517831
________________________________

In the Matter of SHERIAN
   THORNTON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

SAUGERTIES CENTRAL SCHOOL
   DISTRICT et al.,
                    Respondents.
________________________________


Calendar Date:   September 5, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


      Cooper Erving & Savage, LLP, Albany (Phillip G. Steck 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 Board of Cooperative Educational Services,
respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the Supreme Court (Zwack, J.),
entered January 9, 2013 in Ulster County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, seeking reinstatement to her former position.

      Petitioner was employed by respondent Saugerties Central
School District as the District data administrator. In 2012, for
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budgetary reasons, the District purchased data management
services from respondent Ulster Board of Cooperative Educational
Services (hereinafter BOCES). As a result, on February 14, 2012,
the District's Board of Education voted to eliminate petitioner's
position effective March 2, 2012, and her job duties were
undertaken by existing staff members of BOCES. On March 21,
2012, petitioner demanded that, pursuant to Civil Service Law §
70 (2), she be transferred to BOCES to perform her former duties.
The District denied that request on April 11, 2012.

      On July 20, 2012, petitioner commenced this proceeding
seeking reinstatement to her former position and transfer of her
employment to BOCES, along with 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. Both
respondents raised the statute of limitations defense, among
others, and also addressed the merits. Petitioner filed a reply
affidavit. Supreme Court dismissed the petition on the merits,
finding that petitioner had no clear right to the relief
requested because she was not a necessary employee within the
meaning of Civil Service Law § 70 (2). Petitioner appeals.

      Supreme Court erred in addressing the merits under this
procedural posture. While courts may look beyond the petition to
decide a pre-answer motion to dismiss on statute of limitations
grounds, courts generally may not address the merits without
first allowing all respondents to answer, or giving the parties
notice of the intention to treat the motion as one for summary
judgment (see Matter of Nassau BOCES Cent. Council of Teachers v
Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102-
103 [1984]; Matter of Morey v City of Gloversville, 203 AD2d 625,
626 [1994]; see also CPLR 3211 [c]). Indeed, CPLR 7804 (f)
states that if a pre-answer motion to dismiss "is denied, the
court shall permit the respondent to answer, upon such terms as
may be just." Thus, Supreme Court should have addressed the
District's motion and, if it was denied, permitted the District
to answer before ruling on the merits.
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      We will, therefore, address the statute of limitations
defense.1 Petitioner had to commence this proceeding within four
months after the District's determination became final and
binding upon her (see CPLR 217 [1]). To determine when the
statute of limitations began to run, we must first address
whether Civil Service Law § 70 (2) applies.2 If it does not
apply, then this is a common termination of public employment
case and, because no administrative hearing is required, the
statutory "'period runs from the notice of discharge, or the
effective date of discharge, if later'" (Matter of Rakiecki v
State Univ. of N.Y., 31 AD3d 1015, 1016 [2006], quoting Matter of
De Milio v Borghard, 55 NY2d 216, 220 [1982]; see Matter of Rappo
v City of N.Y. Human Resources Admin., 120 AD2d 339, 341 [1986];
compare Matter of Rea v City of Kingston, 110 AD3d 1227, 1229
[2013]). Under that scenario, this proceeding would be untimely.
If Civil Service Law § 70 (2) does apply, the situation is more
complicated; the statute of limitations would normally run from
the performance of certain obligations by respondents, but
respondents thought the statute did not apply so they did not
perform those obligations.



    1
        Contrary to petitioner's argument, because respondents
obtained dismissal of the petition as they had requested, they
were not aggrieved and had no right to cross-appeal (see CPLR
5511). As alternative grounds for affirming, however,
respondents can rely on any arguments that they raised before
Supreme Court, including their statute of limitations defense
(see Matter of Seney v Board of Educ. of E. Greenbush Cent. Sch.
Dist., 103 AD3d 1022, 1022 n 1 [2013]).
    2
        Although the statute of limitations determination is
intertwined with the merits of the petition, under the procedural
posture of this case, we may consider factual affidavits when
addressing the statute of limitations defense even though it
might not be proper to consider those affidavits to decide the
merits at this time (compare Matter of Bronx-Lebanon Hosp. Ctr. v
Daines, 101 AD3d 1431, 1432 [2012], with Matter of Nassau BOCES
Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau
County, 63 NY2d at 103-104).
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      Civil Service Law § 70 (2) applies "[u]pon the transfer of
a function" from the District to BOCES (Civil Service Law § 70
[2] [first sentence]3). The 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 the statute (see Matter of Hellner v Board
of Educ. of Wilson Cent. School Dist., 78 AD3d 1649, 1650
[2010]). The statute required the District, not less than 20
days before any such transfer, to certify to BOCES a list of the
names and titles of all District employees who were
"substantially engaged in the performance of the function to be
transferred" and to publicly post that list along with a copy of
the statute (Civil Service Law § 70 [2] [second sentence]). All
District employees could then, before the effective date of such
transfer, give written notice of protest to BOCES and the
District of their "inclusion in or exclusion from such list"
(Civil Service Law § 70 [2] [third sentence]). The head of BOCES
would be required, within 10 days of receiving a protest, to
review the protest, consult with the District and notify the
employee of the determination regarding such protest (see Civil
Service Law § 70 [2] [fourth sentence]). "Such determination
shall be a final administrative determination" (Civil Service Law
§ 70 [2] [fifth sentence]). Respondents would then be required
to determine which employees on the list were necessary to be
transferred, by considering statutory criteria as well as whether
BOCES had sufficient staff to provide the transferred services
(see Civil Service Law § 70 [2] [first and eighth sentences];
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist.,
78 AD3d at 1651). Employees who were not transferred would be
placed on a preferred hire list for similar positions at both the
District and BOCES (see Civil Service Law § 70 [2] [eleventh
sentence]).



    3
        For ease of reference, in this decision we will cite to
sentences within this lengthy subdivision and will not consider
the caption to be a sentence. We consider the first sentence to
be the one beginning "Upon the transfer of a function," which
serves as an overview of the subdivision and is followed by the
specific procedure and details of the process.
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      When analyzing the statute of limitations question, we must
consider the purpose of the statute – to protect the employment
rights of public employees – and the mandatory nature of the
statute's procedural requirements, directing that the District
"shall" certify to BOCES and post a list of employees
substantially engaged in the transferred function (Civil Service
Law § 70 [2] [second sentence]). Ignoring the statutory
procedure would deprive public employees of the protection of the
statute and reward public employers by giving them the advantage
of a shorter statute of limitations for challenges when they fail
to perform their statutory obligations. This we cannot
countenance.

      In transfer cases, the statute of limitations begins to run
after the transferee agency rules against a protest to include an
employee on the certified list or declines to transfer an
employee who is on the list. Although respondents here did not
follow the statutory process, petitioner's March 21, 2012 letter
demanding that she be transferred to BOCES can reasonably be
deemed to qualify as a protest of her exclusion from a certified
list. While BOCES was required by the statute to rule on that
protest within 10 days (see Civil Service Law § 70 [2] [fourth
sentence]), which did not occur, under the circumstances here we
consider the District's April 11, 2012 denial to be a final
administrative determination regarding petitioner's protest.
Petitioner commenced this proceeding and served respondents on
July 20, 2012, less than four months after her demand letter and
the administrative denial. Thus, the proceeding was timely and
respondents' statute of limitations defense must be rejected.
After this denial of its pre-answer motion, the District must be
permitted to answer prior to Supreme Court ruling on the merits
(see CPLR 7804 [f]).

     Stein, J.P., Egan Jr., Lynch and Clark, JJ., concur.
                              -6-                  517831

      ORDERED that the judgment is reversed, on the law, without
costs, and matter remitted to the Supreme Court to permit
respondent Saugerties Central School District to serve an answer
within 20 days of the date of this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
