                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   523025
________________________________

In the Matter of THE ALBANY
   ACADEMIES et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE PUBLIC HIGH
   SCHOOL ATHLETIC ASSOCIATION,
                    Respondent.
________________________________


Calendar Date:   October 11, 2016

Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

                             __________


      Featherstonhaugh, Wiley & Clyne, LLP, Albany (Jonathan S.
McCardle of counsel), for appellants.

     Renee L. James, Jamesville, for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Melkonian,
J.), entered June 19, 2015 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, challenging respondent's Bylaw and Eligibility
Standard Rule 29 and subsequent modifications thereof.

      Respondent is a not-for-profit corporation organized under
the aegis of the Commissioner of Education (see 8 NYCRR part 135)
to provide a central association through which secondary schools
may operate and coordinate their interscholastic athletic
programs. Petitioners — various charter and private high schools
in New York — are voluntary member schools of respondent who, in
exchange for their membership, have agreed to be bound by the
                              -2-                523025

rules and regulations adopted by respondent. One such rule,
Bylaw and Eligibility Standard Rule 29, known as the transfer
rule, provides that a student who transfers without a
corresponding change in residence of his or her parents (or other
persons with whom the student has resided for at least six
months) is ineligible to participate in any interscholastic
athletic contest in a particular sport for one year if, as a
ninth through twelfth grade student, such student participated in
that sport during the one-year period immediately preceding the
transfer. Such rule allows a one-time transfer to the public
school district of the residence of the student's parents or to a
private school within that district's boundaries while
maintaining eligibility to participate in interscholastic sports
immediately.

      There are six enumerated exceptions to the transfer rule,
empowering respondent to waive the otherwise mandatory period of
ineligibility under the following circumstances:

               "1. The student reaches the age of
           majority and [has] established residency
           in a district and can substantiate that
           [he/she is] independent and self-
           supporting.
               2. If a private or parochial school
           ceases to operate a student may transfer
           to another private or parochial school of
           his/her choice. Otherwise, a student must
           enroll in the public school district of
           his/her parents' residency.
               3. A student who is a ward of the
           court or state and is placed in a district
           by court order. Guardianship does not
           fulfill this requirement.
               4. A student from divorced or
           separated parents who moves into a new
           school district with one of the
           aforementioned parents. Such a transfer
           is allowed once every six months. . . .
               5. A student who is declared homeless
           by the superintendent pursuant to
                              -3-                523025

           Commissioner [of Education]'s Regulation
           100.2l.
               6. A student of a military employee
           who is transferred to an active military
           base may enroll in the non-public school
           closest to [his/her] residence and
           maintain eligibility if the student
           enrolls in a non-public school immediately
           following the change in residence."

The transfer rule also provides that any member school may
petition on behalf of a student for an approval of a transfer
without penalty based upon an "undue hardship" for the student.
Respondent has adopted guidelines setting forth the circumstances
that warrant a waiver of the transfer rule and criteria to be
used in evaluating the undue hardship waivers. The guidelines
list three general categories of undue hardship, namely, (1)
financial, (2) health and safety, and (3) educational.

      In October 2014, respondent's executive committee voted to
modify three aspects of the transfer rule and the corresponding
guidelines. The first revision eliminated one of the three
general categories of undue hardship, known as the "educational
waiver," from the transfer rule guidelines. The educational
waiver previously allowed a student to transfer without sitting
out a year of athletics if the school he or she transferred to
offered three classes not offered at the prior school. Thus,
beginning with the 2015-2016 school year, students who
transferred schools without a corresponding change of address
could not obtain a waiver of the transfer rule on the basis of
educational undue hardship. The second revision modified the
fourth enumerated exception to the transfer rule by requiring
that parents be "legally separated," as opposed to simply
"separated," in order to qualify for the exception. The third
revision added language to the transfer rule itself providing
that, "[f]or athletic eligibility[,] a residency is changed when
one is abandoned by the immediate family and another residency
established through action and intent. Residency requires one's
physical presence as an inhabitant and the intent to remain
indefinitely."
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      On February 23, 2015, petitioners commenced this CPLR
article 78 proceeding to annul the transfer rule and/or the
subsequent modifications thereto on the ground that they are
arbitrary and capricious. Finding a rational basis for each of
the challenged actions, Supreme Court rejected petitioners'
claims and dismissed the petition. This appeal ensued.

      We note at the outset that, in its answer to the petition,
respondent raised the defense of statute of limitations in
response to petitioners' challenge to the transfer rule itself,
which was promulgated more than two decades ago. Although
respondent was entitled to raise that issue on appeal as an
alternative ground for affirmance (see generally Parochial Bus
Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546
[1983]), it has not done so. We therefore deem that issue to be
abandoned (see Huen N.Y., Inc. v Board of Educ. Clinton Cent.
School Dist., 67 AD3d 1337, 1337-1338 [2009]; Measom v Greenwich
& Perry St. Hous. Corp., 42 AD3d 366, 366 [2007], lvs dismissed 9
NY3d 946, 986 [2007]; Ciesinski v Town of Aurora, 202 AD2d 984,
984 [1994]).

      Addressing the merits, it is settled that "courts should
not interfere with the internal affairs, proceedings, rules and
orders of a high school athletic association unless there is
evidence of acts which are arbitrary, capricious or an abuse of
discretion" (Matter of Gerard v Section III of N.Y. State Pub.
High School Athletic Assn., 210 AD2d 938, 939-940 [1994]
[internal quotation marks and citation omitted]; accord Suburban
Scholastic Council v Section 2 of N.Y. State Pub. High School
Athletic Assn., Inc., 23 AD3d 728, 730 [2005]; Section VI of N.Y.
State Pub. High School Athletic Assn. v New York State Pub. High
School Athletic Assn., 134 AD2d 819, 820 [1987], lv denied 72
NY2d 801 [1988]; see 6 Am Jur 2d Associations and Clubs § 27; see
also Matter of Eastern N.Y. Youth Soccer Assn. v New York State
Pub. High Sch. Ath. Assn., 67 NY2d 665, 667 [1986]). Such
"determination rests on whether the athletic association's
actions have a sound basis in reason and a foundation in fact"
(Suburban Scholastic Council v Section 2 of N.Y. State Pub. High
School Athletic Assn., Inc., 23 AD3d at 730 [internal quotation
marks and citation omitted]; see Matter of Pena v New York State
Pub. High School Athletic Assn., Inc., 118 AD3d 1456, 1457
                              -5-                523025

[2014]; see generally Matter of Pell v Board of Educ. of Union
Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 NY2d 222, 231 [1974]).

      We find that petitioners have failed to demonstrate that
the actions taken by respondent warrant our interference. The
purpose of the transfer rule, which was promulgated by respondent
pursuant to its constitution and by authority delegated to it
through the regulations of the Commissioner of Education (see
Matter of Brooks v Section V of N.Y. State Pub. High School
Athletic Assn., 300 AD2d 1094, 1095 [2002]), is to deter athletic
school-shopping and the recruitment of high school athletes by
schools. By establishing an objective standard for eligibility
that prohibits, with certain limited exceptions, immediate
eligibility upon a transfer not accompanied by a parental change
of residence, the transfer rule reasonably and rationally
furthers these legitimate goals. Indeed, "[t]he absence of such
a rule might reasonably invite strategically motivated transfers
thinly disguised as transfers in the best (nonathletic) interest
of the student" (Indiana High Sch. Athletic Assn., Inc. v
Carlberg, 694 NE2d 222, 233 [Ind Sup Ct 1997] [internal quotation
marks and citations omitted]). While the transfer rule may, at
times, encompass students who change schools neither primarily
for athletic reasons nor as a result of recruitment, respondent
has reasonably determined that conducting a factual inquiry into
the motivation for each and every transfer would not be feasible
given its limited resources and the volume of transfers that
would have to be examined. Further, respondent has balanced
these competing interests by creating the six enumerated
exceptions to the transfer rule and providing for immediate
eligibility upon demonstration of an undue hardship. Inasmuch as
the transfer rule is reasonable and accomplishes the legitimate
purpose for which it was promulgated, it is not within our
province to assess the merits of such a rule or the wisdom of its
adoption.1


    1
        Notably, transfer rules similar to the one at issue here
have been enacted by high school athletic associations in several
states and have repeatedly been upheld as rational (see e.g.
Parker v Ariz. Interscholastic Assn., 204 Ariz 42 [2002]; Indiana
                              -6-                523025

      Nor are we persuaded that the October 2014 modifications to
the transfer rule lack a rational basis or are otherwise
arbitrary or capricious. With regard to its decision to
eliminate the educational waiver from its guidelines,
respondent's submissions establish that member schools had raised
serious concerns regarding the use of such waivers and whether
academic advantage constituted an "undue hardship" within the
meaning of the rule itself. After reviewing the guidelines over
the course of several years and collecting data concerning the
number and types of undue hardships granted, respondent
determined that the educational undue hardship waiver had been
misused to circumvent the transfer rule and that its elimination
was the best means to discourage recruitment and athletic
shopping by students and parents. We cannot say that
respondent's decision in that regard was irrational. Likewise,
respondent's modification to the fourth enumerated exception to
the transfer rule — requiring parents to be "legally separated"
in order to qualify for the exception — was a rational response
to concerns that parents were strategically circumventing the
transfer rule by procuring a second residence and living
separately for a period of time with no intention of divorcing.2
Finally, respondent did not act arbitrarily or capriciously in


High Sch. Athletic Assn., Inc. v Carlberg, 694 NE2d at 233;
Alabama High Sch. Athletic Assn. v Scaffidi, 564 So 2d 910
[1990]; Ulliman v Ohio High Sch. Athletic Assn., 184 Ohio App 3d
52 [2009]; Morgan v Oklahoma Secondary Sch. Activities Assn.,
2009 OK 21 [2009]; Hebert v Ventetuolo, 480 A2d 403 [RI Sup Ct
1984]; Kentucky High School Athletic Assn. v Hopkins County Bd.
of Educ., 552 SW2d 685 [Ky Sup Ct 1977]; Chabert v Louisiana High
School Athletic Assn. & Vandebilt Catholic High Sch., 323 So 2d
774 [Lo Sup Ct 1975]; Crandall v North Dakota High Sch.
Activities Assn., 261 NW2d 921 [ND Sup Ct 1978]; State ex rel.
Missouri State High Sch. Activities Assn. v Romines, 37 SW3d 421
[Mo Ct of Appeals, Eastern Dist 2001]).
    2
        In modifying this exception, respondent's executive
committee expressly noted the undue hardship waiver could be used
to grant eligibility in cases where parents could not afford a
legal separation.
                              -7-                  523025

requiring parents to demonstrate an intent to remain indefinitely
in their new home in order for the relocation to constitute a
"change in residence" under the transfer rule. This
modification, like that made to the fourth enumerated exception,
was meant to address efforts to evade the transfer rule, as well
as to bring the meaning of the term residency in line with the
Department of Education and Court of Appeals' interpretation of
that term (see Longwood Cent. School Dist. v Springs Union Free
School Dist., 1 NY3d 385, 388-390 [2004]; Appeal of Lin, 48 Ed
Dept Rep 190 [Decision No. 15,827] [2008]; Appeal of Haldane
Cent. School Dist., 32 Ed Dept Rep 156 [Decision No. 12,790]
[1992]).

     Lynch, Devine, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
