                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521890
________________________________

In the Matter of WESTCHESTER
   LIBRARY SYSTEM et al.,
                    Appellants,
      v
                                            OPINION AND ORDER
JOHN B. KING JR., as
   Commissioner of Education of
   the State of New York,
   et al.,
                    Respondents.
________________________________


Calendar Date:   April 22, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

                             __________


      O'Connell & Riley, Pearl River (James K. Riley of counsel),
for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Frederick
A. Brodie of counsel), for respondents.

                             __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Weinstein,
J.), entered December 31, 2014 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Commissioner
of Education reducing state aid to petitioner Westchester Library
System.
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      Petitioner Mount Vernon Public Library (hereinafter MVPL)
is the central library for petitioner Westchester Library System
(hereinafter WLS) – a public library system established by the
state "to provide cooperative, cost-effective regional library
services for its 38 independent member public and association
libraries." MVPL primarily is funded by appropriations from
local taxes raised by the City of Mount Vernon, Westchester
County and, secondarily, by state aid provided in accordance with
Education Law §§ 272 and 273. The state aid component is subject
to the maintenance-of-effort requirement set forth in Education
Law § 272 (1) (j) (2), which provides, in relevant part:

           "In the event that the total sum raised by
           local taxation, exclusive of the sum
           raised for capital expenditures, for the
           support of a central library of a public
           library system in a [12] month period, is
           less than [95%] of the average of the
           amounts raised for such purposes by local
           taxation for the two preceding [12] month
           periods, the state aid to which such
           library system would otherwise be entitled
           for the development of its central library
           shall be reduced by [25%]."

In other words, in order to avoid a 25% reduction in state aid,
the City must maintain at least 95% of the support that it
provided to MVPL – on average – from local taxation for the
preceding two years. This maintenance-of-effort requirement,
which is designed to ensure that state aid supplements – but does
not supplant – local support for public library systems and
central libraries, is a continuing one and is subject to review
on an annual basis (see 8 NYCRR 11.4). In the event that the
maintenance-of-effort requirement is not met, the public library
system or central library may apply for a waiver under certain
limited circumstances (see Education Law § 272 [1] [j] [3]).

      Consistent with the foregoing statutory and regulatory
provisions, MVPL provided respondent State Education Department
with its annual report for 2011. A review of the report
reflected that the City appropriated a total of $3,361,755 in
                               -3-                521890

local funds for MVPL's support in 2011 – a sum that represented a
marked departure from the $4,140,598 appropriated by the City in
2009 and the $4,218,844 appropriated in 2010. As a result, by
letter dated January 22, 2013, the Department notified WLS that
MVPL had failed to meet the maintenance-of-effort requirement for
central libraries as set forth in Education Law § 272 (1) (j)
(2), thereby triggering a 25% reduction in state aid to WLS for
central library services.1 In response, WLS applied for the two-
year waiver then available under Education Law § 272 (1) (j)
(former [3]) for calendar years 2011 and 2012,2 citing an
extraordinary change in the City's economic condition during
fiscal years 2010 and 2011 and claiming excessive hardship. By
letter dated April 9, 2014, the Department denied WLS's waiver
request, noting that the documentation submitted in connection
therewith did "not establish that there was an extraordinary
change in the [City's] economic condition" during the years in
question.

      In July 2014, petitioners initiated what they denominated
as an administrative appeal of the Department's denial of the
waiver, claiming that the Department had misinterpreted and
misapplied the maintenance-of-effort requirement embodied in
Education Law § 272 (1) (j) (2).3 Shortly thereafter,
petitioners commenced this CPLR article 78 proceeding, similarly
contending that the Department improperly reduced their share of
state aid. Respondents answered and raised various affirmative
defenses, including that the proceeding was time-barred and that


     1
        The Department issued a similar letter in May 2014,
finding that MVPL failed to meet the maintenance-of-effort
requirement based upon the figures set forth in its 2012 annual
report.
     2
        The statute was amended in 2014 to permit respondent
Commissioner of Education to grant such a waiver for a period of
up to three consecutive years (see L 2014, ch 287, § 1).
     3
        There appears to be some question as to the availability
of an administrative appeal but, in any event, no response to
petitioners' letter appears in the record.
                              -4-                521890

the petition failed to state a cause of action. Supreme Court,
in a well-reasoned decision, dismissed petitioners' application.
Petitioner now appeals and we affirm.

               "Where the interpretation of a statute
           or its application involves knowledge and
           understanding of underlying operational
           practices or entails an evaluation of
           factual data and inferences to be drawn
           therefrom, the courts regularly defer to
           the governmental agency charged with the
           responsibility for administration of the
           statute. . . . Where, however, the
           question is one of pure statutory reading
           and analysis, dependent only on accurate
           apprehension of legislative intent, there
           is little basis to rely on any special
           competence or expertise of the
           administrative agency and its interpretive
           regulations are therefore to be accorded
           much less weight" (Kurcsics v Merchants
           Mut. Ins. Co., 49 NY2d 451, 459 [1980]
           [internal citations omitted]; see Matter
           of Lighthouse Pointe Prop. Assoc. LLC v
           New York State Dept. of Envtl.
           Conservation, 14 NY3d 161, 176 [2010];
           Matter of Michael A. Goldstein No. 1 Trust
           v Tax Appeals Trib. of the State of N.Y.,
           101 AD3d 1496, 1497 [2012], lv denied 21
           NY3d 860 [2013]; Matter of Lewis Family
           Farm, Inc. v New York State Adirondack
           Park Agency, 64 AD3d 1009, 1013 [2009]).

Although the parties debate whether administrative deference is
warranted here, this issue need not detain us as we are satisfied
that petitioners' strained interpretation of Education Law § 272
(1) (j) (2) fails regardless of the analysis employed.

     As noted previously, Education Law § 272 (1) (j) (2)
                              -5-                521890

provides, in relevant part:

           "In the event that the total sum raised by
           local taxation . . . for the support of a
           central library of a public library system
           in a [12] month period, is less than [95%]
           of the average of the amounts raised for
           such purposes by local taxation for the
           two preceding [12] month periods, the
           state aid to which such library system
           would otherwise be entitled for the
           development of its central library shall
           be reduced by [25%]."

Petitioners seize upon an isolated portion of the statutory
language – namely, the phrase "the total sum raised by local
taxation" – and contend that the quoted language refers to the
total amount of general tax revenues raised, recouped and/or
generated by the City during the relevant time period. As the
City purportedly experienced a net property tax increase for
fiscal years 2009-2010 and 2010-2011, petitioners' argument
continues, it necessarily follows that there was no basis upon
which to trigger the 25% reduction in state aid. Petitioners'
argument, however, misses the mark as it ignores the balance of
the statutory language.

      The statute – on its face – expressly references "the total
sum raised by local taxation . . . for the support of a central
library of a public library system in a [12] month period"
(Education Law § 272 [1] [j] [2] [emphasis added]). Reading the
statute in its entirety, as we must (see Local Govt. Assistance
Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524, 537-538
[2004]; Matter of Retired Pub. Empls. Assn., Inc. v Cuomo, 123
AD3d 92, 94-95 [2014]), it is readily apparent that "the total
sum raised by local taxation" means the total amount of tax
revenues earmarked or allocated by a municipality for the support
of a central library. Notably, the statute does not distinguish
between library systems that levy their own taxes and those that
rely exclusively upon municipal tax support, nor is the phrase
"local taxation" limited in any fashion. Hence, contrary to
petitioners' assertion, the statute absolutely encompasses the
                              -6-                521890

very situation presented here – namely, where a municipality
levies taxes and thereafter appropriates a portion of such
revenues "for the support" of the central library.4

      Although we have reached this conclusion without resort to
the legislative history underlying Education Law § 272 (1) (j)
(2), we cannot help but note that the construction of the statute
advanced by petitioners would both lead to an anomalous result
and undermine the very purpose of the statute in the first
instance. In this regard, a review of the affidavit tendered by
the State Librarian and Assistant Commissioner for Libraries for
the Department, as well as the materials annexed thereto, makes
clear that the overarching purpose of the maintenance-of-effort
requirement is "to ensure [that] the recipient [of state aid]
maintains fiscal integrity and overall programmatic efficacy."
Stated another way, "[t]he imposition of such a condition ensures
[s]tate dollars are used to supplement the recipient's normal
activities and not to supplant (replace) such activities."
Indeed, the record reflects that the maintenance-of-effort
requirement was instituted in response to "a concern that towns,
villages, cities and counties might misinterpret the [s]tate's
action to mean that local funds were no longer necessary." For
that reason, "language was written into the law to discourage
reductions in local public income." Petitioners' reading of the
statute, whereby the maintenance-of-effort provision triggers a


    4
        Further support for this construction may be found in
Education Law § 272 (1) (j) (former [3]), which authorizes the
Commissioner to waive the maintenance-of-effort requirement if he
or she determines that application of that provision "would
result in excessive hardship for the public library system or
central library brought about by an extraordinary change in a
local sponsor's economic condition, loss by a local sponsor of
state aid to local governments . . . or by a natural disaster."
A "local sponsor," in turn, is defined as "any municipality,
district or school district, as defined in the general municipal
law, or any combination thereof" (Education Law § 272 [1] [j]
[4]). As such, it again is apparent that the statute encompasses
a public library system or central library that obtains local
sponsorship from municipal tax levies.
                              -7-                  521890

reduction in state aid only when there is a decrease in a
municipality's total tax revenues – notwithstanding any change in
such municipality's allocation of support to a central library or
library system – is entirely inconsistent with the statutory goal
of ensuring that municipalities maintain their own local share of
responsibility for such services. Further, as respondents point
out, adopting petitioners' interpretation of Education Law § 272
(1) (j) (2) would permit state aid to continue to flow –
unchecked – to support MVPL while simultaneously allowing the
City to reduce appropriations for library services. To our
reading, this is a result that the statute simply does not
envision.

      Finally, although Supreme Court found that petitioners
failed to demonstrate their entitlement to a waiver of the
maintenance-of-effort requirement under Education Law § 272 (1)
(j) (former [3]), petitioners did not brief this issue on appeal
and, therefore, we deem any argument on this point to be
abandoned (see Matter of Gonzalez v DiNapoli, 133 AD3d 1078, 1078
n [2015]). Petitioners' remaining arguments, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.

     Garry, J.P., Lynch, Clark and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
