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MATTER BOARD EDUCATION CITY BUFFALO v. CITY BUFFALO ET AL. (08/22/68)
SUPREME COURT OF NEW YORK, ERIE COUNTY
1968.NY.42796 <http://www.versuslaw.com>; 293 N.Y.S.2d 421; 57 Misc. 2d 472
August 22, 1968
IN THE MATTER OF BOARD OF EDUCATION OF THE CITY OF BUFFALO, NEW YORK, PETITIONER AND PLAINTIFF,v.CITY OF BUFFALO ET AL., RESPONDENTS AND DEFENDANTS
McDonough, Boasberg, McDonough & Beltz (Charles J. McDonough of counsel), for petitioner and plaintiff.
Johnson & Bayger (Frank R. Bayger and William E. Balthaser of counsel), for respondents and defendants.
Robert D. Stone and John P. Jehu for Commissioner of Education of State of New York, amicus curiae.
Fudeman & Renaldo (Irving Fudeman of counsel), for Citizens Council on Human Relations, Inc., amicus curiae.
Ira J. Pressman for American Civil Liberties Union, amicus curiae.
Frank J. Kronenberg, J.
The Board of Education of the City of Buffalo, New York, petitioner and plaintiff herein, instituted an article 78 proceeding directing the respondents and defendants to show cause at Special Term of this court on July 31, 1968 why an order should not be granted herein, as follows:
(1) Determining that the purported amendment to section 201 of chapter XII of the Buffalo City Ordinances was unconstitutional, ultra vires, and otherwise null and void; and for a final order annulling and vacating the determinations and actions of the respondents; directing the immediate approval by the respondent Charles A. Stutzman, as Director of Buildings of the applications for building permits herein, and directing immediate issuance of said building permits for the installation and erection of said relocatable classroom units;
(2) An order enjoining and restraining all of the respondents from attempting to enforce said section 201, as amended against the petitioner or Sectional Structures, Inc. with reference to the construction and installation of said relocatable classroom units; and granting a mandatory injunction directing the respondent Charles A. Stutzman, as Director of Buildings to forthwith issue said building permits;
(3) Granting petitioner such other and further relief herein as may be just and proper.
Respondents and defendants appeared on July 31, 1968 and obtained an adjournment to August 7, 1968 to answer. However, instead of answering, respondents and defendants by notice of motion moved for a dismissal of the petition herein, pursuant to CPLR 404 (subd. [a]) and 7804 (subd. [f]), the same being returnable before this court on August 7, 1968.
Respondents and defendants gave the following grounds for dismissal of the petition herein:
1. The petition does not state facts sufficient to entitle petitioner-plaintiff to the relief requested.
(a) As a matter of law the moving papers and exhibits fail to state facts showing:
i. That the questioned amendment is unconstitutional;
ii. That the questioned amendment is unreasonable as an exercise of police power of the legislative body of the City of Buffalo;
iii. That the common council did not have the power to enact the questioned amendment;
iv. That any error of law was committed by any of the respondents-defendants;
v. That any action of any of the respondents-defendants was arbitrary, capricious or ...