FILED: BRONX COUNTY CLERK 10/13/ :51 PM INDEX NO /2016E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/13/2016

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1 FILED: BRONX COUNTY CLERK 10/13/ :51 PM INDEX NO /2016E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX NANA YAW BIRIDJAN and BARIKISU LANGYIN, - against - Petitioners, NEW YORK STATE DEPARTMENT OF EDUCATION, Index No /2016E (Hon. Mary Ann Brigantti, J.S.C.) Res ondent. MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT'S CROSS-MOTION TO CHANGE VENUE ERIC T. SCHNEIDERMAN Attorney General of the State ofnew York Attorney for Respondent 120 Broadway, 24th Floor New York, New York (212) MICHAEL R. KLEKMAN Assistant Attorney General Of Counsel 1 of 20

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT... 1 BACKGROUND... 2 ALLEGATIONS IN THE PETITION... 3 THE PRESENT PROCEEDING... 4 ARGUMENT... 5 POINT I THIS PROCEEDING SHOULD BE TRANSFERRED TO SUPREME COURT, ALBANY COUNTY... 5 A. Supreme Court, Albany County is the Only Proper Venue for an Article 78 Proceeding Brought against NYSED This is an Article 78 Proceeding By Law, this Proceeding May Only Be Properly V enued in Albany County... 7 B. The General Venue Provision ofcplr 506(b) Also Requires Transfer to Albany C. Respondent has Complied with the Procedural Requirements in CPLR Rule 51 l(b) POINT II THE PROCEEDING AND NYSED'S TIME TO ANSWER OR MOVE AGAINST THE VERIFIED PETITION SHOULD BE STAYED PENDING THE CHANGE OF VENUE CONCLUSION APPENDICES APPENDIX A - Jones v. AccessNESID, slip op., Index No. 7116/12 (Sup. Ct. Kings Co. June 14, 2012) 2 of 20 -i-

3 TABLE OF CONTENTS APPENDICES APPENDIX B APPENDIX C Jameson v. NYSED Vocational Educ. Servs. for Individuals with Disabilities, slip Qlh, Index No. 7616/09 (Sup. Ct. Albany Co. Dec. 23, 2009) Ramsay v. De.p't of Educ. Licensing Div., slip Qlh, Index No /09 (Sup. Ct. Kings Co. Oct. 7, 2009) APPENDIX D Keniry v. N.Y. State Educ. De.p't, slip Qlh, Index No. 6540/06 (Sup. Ct. Kings Co. Jan. 10, 2007) APPENDIX E Lipsman v. N.Y. State Educ. De.p't, slip.qli, Index No /03 (Sup. Ct. New York Co. Apr. 3, 2003) APPENDIX F Matter of Tinny Beauty Inc. v. New York State Education De.partment, Index No /15 (Sup. Ct. N.Y. Co. June 12, 2015) APPENDIX G - American Computer Training & Consulting v. Mills, New York State Education De.partment and Bureau of Proprietary School Supervision, slip Qlh Index No /08 (Sup. Ct. N.Y. Co. July 21, 2008) APPENDIX H - Bd. of Educ. v. Office of the State Comptroller, slip Qlh, Index No /07 (Sup. Ct. Suffolk Co. Jul. 24, 2007) APPENDIX I - Rosenberg v. N.Y.S. Bd. of Regents, slip Qlh, Index No /01 (Sup. Ct. New York Co. Oct. 5, 2002) 3 of 20 -n-

4 TABLE OF AUTHORITIES American Computer and Training v. Mills, New York State Education Department and Bureau of Proprietary School Supervision. slip op. Index No /08 (Sup. Ct. N.Y. Co. July 21, 2008)... 8 Bd. of Educ. v. Office of the State Comptroller, slip filh, Index No /07 (Sup. Ct. Suffolk Co. Jul. 24, 2007)... 9 Board of Education v. Allen, 25 A.D.2d 659 (2d Dep't 1966)... 7 Jameson v. NYSED Vocational Educ. Servs. for Individuals with Disabilities, slip filh, Index No. 7616/09 (Sup. Ct. Albany Co. Dec. 23, 2009)... 8 Jones v. Access/VESID, slip op., Index No. 7116/12 (Sup. Ct. Kings Co. June 14, 2012)... 7, 8, 14 Keniry v. N.Y. State Educ. De_p't, slip filh, Index No. 6540/06, at 3-4 (Sup. Ct. Kings Co. Jan. 10, 2007)... :... 8, 10 Lane v. Nyquist, 59 A.D.2d 755 (2d Dep't 1977)... 7 Lipsman v. N.Y. State Educ. De_p't, slip filh, Index No /03 (Sup. Ct. N.Y. Co. Apr. 3, 2003)... 8, 10 Matter of Avon Dairies v. Du Mond, 280 A.D. 116, 111N.Y.S.2d272 (4th Dep't 1952)... 9 Matter ofbd.. oftrs. of Common Sch. Dist. No. 2 v. Comm'r of Education, 33 N.Y.2d 601, 347 N.Y.S.2d 569 (1973)... 9 Matter of Tinny Beauty Inc. v. New York State Education Department. slip QQ., Index No /15 (Sup. Ct. N.Y. Co. June 12, 2015)... 8, 13, 14 Mtr. of Axelrod v. Sobol, 180 A.D.2d 905 (3d Dep't 1992)... 7, of 20

5 TABLE OF AUTHORITIES Mtr. of Combs v. N.Y.S. Bd. of Parole, 862 N.Y.S.2d 807 (Sup. Ct. N.Y. Co. 2008) Mtr. of Hamilton v. Diamond,. 69 Misc.2d 492 (Sup. Ct. Rockland Co. 1972)... ~ Mtr. of Posner v. Rockefeller, 33 A.D.2d 683 (1st Dep't 1969), aff'd, 25 N.Y.2d 720 (1969)... 10, 11 Mtr. of Ryback v. Lomenzo, 38 A.D.2d 915 (1st Dep't 1972)... :... 5 Ramsay v. Dep't of Educ. Licensing Div., slip Qlh, Index No /09 (Sup. Ct. Kings Co. Oct. 7, 2009)... 8, 10 Rosenberg v. N.Y.S. Bd. of Regents, slip Qlh, Index No /01 (Sup. Ct. New York Co. Oct. 5, 2002)... 10, 14 Rosenblatt v. Sait, 34 A.D.2d 238 (1st Dep't 1970)... 5 Ward v. Sise, 127 Misc.2d 32, 485 N.Y.S.2d 161 (Sup. Ct. Erie Co. 1984) Statutes, Rules and Regulations Statutes & Rules CPLR Article passim 103(c) ll 506(b)... l, 2, (b )(2)... passim 5 of 20 -iv-

6 TABLE OF AUTHORITIES Statutes & Rules CPLR 510(1) , 2, 5, passim (1)... 6 Rule , 12 Rule 51 l(a)... 4, 12 Rule 51 l(b)... :... 1, 4, 5, 12 Rule 51l(c)... 1,2, 5, 13 N.Y. Educ. Law , : Regulations 8 N.Y.C.R et. seq l(b) (b) of 20 -v-

7 SUPREME COuRT OF THE STATE OF NEW YORK COUNTY OF BRONX NANA YAW BIRIDJAN and BARIKISU LANGYIN, Petitioners, - against - NEW YORK STATE DEPARTMENT OF EDUCATION, Index No /2016E (Hon. Mary Ann Brigantti, J.S.C.) Res ondent. MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT'S CROSS-MOTION TO CHANGE VENUE Respondent NEW YORK STATE EDUCATION DEPARTMENT s/h/a New York State Department of Education (''NYSED" or "Respondent") resp~ctfully submits this memorandum of law in support of its cross-motion to change the venue of this proceeding from NewY ork County to Albany County pursuant to CPLR 506(b)(2), 506(b), 510(1), and CPLR Rule 511, to stay further proceedings pending transfer pursuant to CPLR Rule 51 l(c) and CPLR 2201, and to extend NYSED's time to answer or move against the petition pending the transfer pursuant to CPLR 51 l(c), 2004, and 2201 Also submitted in support of this cross-motion is the affirmation of Assistant Attorney General Michael R. Klekman ("Klekman Aff. "), dated October 13, 2016, and exhibits thereto. PRELIMINARY STATEMENT Petitioners Nana Yaw Biridjan ("Biridjan") and Barikisu Langyin ("Langyin") (collectively "Petitioners") bring this Article 78 proceeding in Supreme Court, Bronx County, - seeking as their sole relief issuance of a writ of mandamus to compel NYSED to "comply with its statutory duty" and issue licensed practical nurse ("LPN") licenses to them. (Pet. Wherefore 7 of 20

8 clause) (NYSCEF Doc. No. 1). In so doing, they allege that NYSED's alleged refusal to issue those licenses was both "without a proper basis in law" and "arbitrary, capricious, and unreasonable." This Court should not reach the merits of Petitioners' claims or NYSED's defenses, which must be litigated in Supreme Court, Albany County. As more fully set forth below, CPLR 506(b )(2) requires Article 78 proceedings against NYSED such as this one to be brought only in Supreme Court, Albany County, and even if it did not, the general Article 78 venue provision of CPLR 506(b) mandates transfer to Albany, the only venue which satisfies any of those requirements. NYSED has complied with the procedural requirements for change of venue motions set out by CPLR Rule 511. Thus, this Court should transfer this proceeding to Supreme Court, Albany County for a determination on the merits. Moreover, since NYSED has acted with due diligence in seeking a change of venue, and in the interest of judicial comity, the Court should grant an order staying all proceedings, including NYSED's time to answer or move against the verified petition pending the transfer, pursuant to CPLR Rule 51 l(c), 2004, and BACKGROUND NYSED administers the regulation, licensure and practice of approximately fifty professions enumerated in Title VIII of the Education Law through its Office of the Professions ("OP"), assisted by the State Boards for the Professions. See Educ. Law ; OP website, (last visited October 13, 2016). OP's Division of Professional Licensing Services, of which Susan Naccarato, Esq., ("Ms. Naccarato") is currently Acting Director, is responsible for the review of applications for licensure and all required supporting material to demonstrate compliance with licensure requirements. See General Information and Policies, (last visited October 13, 2016). The 2 8 of 20

9 principal offices ofnysed, the OP and its Division of Professional Licensing Services are all located in the New York State Education Building, 89 W_ashington Avenue in Albany. See Educ. Law 108; "About the New York State Education Department," (last visited October 10, 2016); Office of the Professions Contact Information, (last visited October 10, 2016). Nursing is one of the professions regulated by the OP ofnysed. See Educ. Law The requirements for licensuie in New York as an LPN appear in Educ. Law 6906 and Part 64 of the Commissioner's Regulations, 8 N.Y.C.R.R. 64.l fil:_ seq. In relevant part, to be licensed and registered as an LPN in New York, a candidate must be of good moral character, be at least seventeen years of age; meet education r~quirements, meet examination requirements and apply for an LPN license with NYSED. See Educ. Law 6906; 8 N.Y.C.R.R. 64.l(b), 64.2 (b). Regarding the education requirement, as relevant here, an LPN candidate must have graduated from high school or its equivalent and shall have graduated from a program in nursing registered by NYSED or approved by the licensing authority of another state, territory or possession of the United States as preparation for practice as an LPN. Id. The application for an LPN license with NYSED is on a form, Nurse Form 1 of the OP Division of Professional Licensing Services, on the OP website, and must be submitted to the OP in Albany where it is reviewed. See OP License Requirements: RN & LPN, ALLEGATIONS IN THE PETITION Petitioners allege that they have applied to NYSED for licensure as LPNs and have complied with all necessary requirements for obtaining those licenses (Pet.,, 6, 8, 18, 19), but that NYSED denied their applications "without a proper basis in law." Id.,,, 8, 19. They further 3 9 of 20

10 allege that NYSED's alleged refusal to issue the licenses was "arbitrary, capricious, and unreasonable." Id.,, 9, 20. They assert that they both retained counsel who "formally demanded" issuance of the licenses by way of letters to Ms. Naccarato, in her capacity as Acting Director of OP's Division of Professional Licensing Services, dated June 14 and 17, 2016, Id., ifif 12, 24, but that NYSED refused to respond in writing to counsel's letters. Id. They allege that Ms. Naccarato informed their counsel orally that NYSED does not intend to issue an LPN license to Petitioner Biridjan and "may not issue the LPN license to Petitioner Langyin." Id. They seek a writ of mandamus compelling NYSED to issue the licenses to them. (Pet. Wherefore clause). THE PRESENT PROCEEDING Petitioners filed their petition in Supreme Court, Bronx County on September 13, 2016 (NYSCEF Doc. No. 1) and the notice of petition on September 16, 2016 (NYSCEF Doc. No. 6); Klekman Aff., Ex. A. Service was made upon NYSED and the Office of the Attorney General on September 21, 2016 (NYSCEF Docs. Nos. 8 and 9); Klekman Aff. if 3. By s sent on September 26, 2016, five days after service, NYSED advised Petitioners that CPLR 506(b)(2)'s mandatory venue provisions required that this proceeding be brought in Supreme Court, Albany County, presented Petitioners with the clear legal authority in support of that position and requested their agreement to a transfer of venue to avoid motion practice. See Klekman Aff., Ex. B. Not having received a response, on September 30, 2016, NYSED filed and served a written Demand for Change of Place of Trial ("Demand") on Petitioners bynyscef (NYSCEF Doc. No. 10) pursuant to CPLR Rule 51 l(a) and (b), demanding that the place of trial in the instant proceeding be changed from New York County, which was improperly designated by Petitioners, to Albany County, the only proper venue. See 4 10 of 20

11 Demand (Klekman Aff., Ex. C); K.lekman Aff., ~ 6. Petitioners failed to serve either a written consent to the change of venue or an affidavit in opposition to the Demand by October 5, 2016, within five days after service of the Demand. K.lekman Aff., ~ 7. NYSED now brings this timely cross-motion within fifteen days of service of the Demand to change the place of trial ofthis proceeding from Supreme Court, New York County, where it was improperly brought, to Supreme Court, Albany County, the only proper county, pursuant to CPLR Rule 511 (b ). NYSED has sought the requested change of venue with due diligence, and requests a stay of the underlying proceeding, including NYSED's time to answer or move against the petition, pending the transfer, pursuant to CPLR Rule 511 ( c ), 2004 and ARGUMENT POINT I TIDS PROCEEDING SHOULD BE TRANSFERRED TO SUPREME COURT, ALBANY COUNTY. A. Supreme Court, Albany County is the Only Proper Venue for an Article 78 Proceeding Brought against NYSED. This proceeding should be transferred to the New York State Supreme Court in Albany County, the only proper county for maintenance of this proceeding, as a matter oflaw. Further, once a court determines that the venue should be changed, the court making such a determination "should not in the interest of' [ o ]rderly procedure and a proper regard for comity,' consider the underlying merits of the application." Mtr. of Ryback v. Lomenzo, 38 A.D.2d 915 (1st Dep't 1972) (quoting Rosenblatt v. Sait, 34 A.D.2d 238, 239 (1st Dep't 1970)) of 20

12 1. This is an Article 78 Proceeding. Although Petitioners did not designate this proceeding as an Article 78 proceeding in their Request for Judicial Intervention (NYSCEF Doc. No. 7), where they erroneously describe it as a "non-commercial contract" matter seeking declaratory judgment, nor did they reference Article 78 in the caption of the petition, their petition clearly lies under Article 78 and the court should treat it as such. See CPLR I 03( c )(if proceeding not brought in proper form, "court shall make whatever order is required for its proper prosecution."). Petitioners have filed a petition in a special proceeding, not a complaint in a plenary action, and refer to themselves as petitioners, not plaintiffs, to NYSED as respondent, not defendant, and title the petition a "Petition for Writ of Mandamus." (Pet. p. 1). As CPLR 7801 notes, Article 78 has replaced and encompasses traditional common law writs, including writs of mandamus. See CPLR 7801 ("Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article."). Petitioners do not attach or point to any actual "contract" between themselves and NYSED. Instead, the questions the petition raises: whether NYSED failed to perform a duty enjoined upon it by law and whether its refusal to issue licenses was "without a proper basis in law" and was "arbitrary, capricious and unreasonable" are precisely the questions enumerated in CPLR 7803 (1) and (3). See Lane v. Nyquist, 59 A.O. 2d 755 (2d Dep't 1977) (where in action seeking declaratory and injunctive relief, complaint indicated that plaintiffs sought to review a determination by the State Commissioner of Education and to compel compliance with due process requirements as to their assignments to regular classroom teaching duties, action should have been treated as a special proceeding under CPLR Article 78 when Special Term properly directed its transfer to 6 12 of 20

13 the Supreme Court, Albany County, pursuant to CPLR 506 (b) (2); Board of Education v. Allen, 25 A.D.2d 659 (2d Dep't 1966) (same). Further, Petitioners seek only mandamus relief in the notice of petition and petition to compel action by NYSED, not a declaratory judgment or monetary damages. Mandamus relief to compel a body to perform a duty allegedly enjoined upon it by law can only be sought in an Article 78 proceeding, see CPLR Thus, this proceeding is properly treated as one for relief pursuant to Article By Law, this Proceeding May Only Be Properly Venued in Albany County. CPLR 506(b )(2) provides in relevant part that an Article 78 proceeding: shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events took place, or where the principal office of the respondent is located, except that [... ] 2. a proceeding against the... the commissioner of education... shall be commenced in the supreme court, Albany County. (emphasis added). This mandatory venue provision applies to the Commissioner of Education, NYSED, of which the Commissioner of Education is the "chief administrative officer," Educ. Law 101, and to NYSED's constituent offices and employees, and necessitates the transfer of this proceeding to Supreme Court, Albany County. See Mtr. of Axelrod v. Sobol, 180 A.D.2d 905, 906 (3d Dep't 1992) (Article 78 proceeding against Commissioner of Education must be brought in Supreme Court, Albany County); Lane, 59 A.D.2d 755 (same); Jones v. AccessNESID, slip op., Index No. 7116/12 (Sup. Ct. Kings Co. June 14, 2012) (annexed as Appendix A hereto) (transferring Article 78 proceeding against particular office of NYSED to 7 13 of 20

14 Supreme Court, Albany County); Jameson v. NYSED Vocational Educ. Servs. for Individuals with Disabilities, slip Qll., Index No. 7616/09 (Sup. Ct. Albany Co. Dec. 23, 2009) (annexed as Appendix B) ("The law is clear that proceedings brought against the State Education Department... and its constituent units and employees must be brought in Supreme Court, Albany County."); Ramsay v. Dep't of Educ. Licensing Div., slip Q11., Index No /09 (Sup. Ct. Kings Co. Oct. 7, 2009) (annexed as Appendix C) (Article 78 proceeding against the Licensing Divisjon of NYSED transferred from Supreme Court, Kings County to Supreme Court, Albany County); Keniry v. N.Y. State Educ. Dep't, slip Qll., Index No , at 3-4 (Sup. Ct. Kings Co. Jan. 10, 2007) (annexed as Appendix D) (proper venue for a special proceeding against NYSED and its agents is Supreme Court, Albany County); Lipsman v. N.Y. State Educ. Dep't, slip Ql1., Index No /03 (Sup. Ct. N.Y. Co. Apr. 3, 2003) (annexed as Appendix E) (same); Matter of Tinny Beauty Inc. v. New York State Education Department, slip QQ., Index No /15 (Sup. Ct. N.Y. Co. June 12, 2015) (annexed as Appendix F) (mandatory venue for an Article 78 proceeding against NYSED seeking to annul NYSED determination not to renew petitioner's license is Supreme Court, Albany County); American Computer and Training v. Mills. New York State Education Department and Bureau of Proprietary School Supervision, slip.qq,. Index No /08 (Sup. Ct. N.Y. Co. July 21, 2008) (annexed as Appendix G) (same). This mandatory venue provision allows for uniform judicial review of NYSED decisions, and limits the burden on NYSED of defending proceedings across the state. See Lipsman, Appx. E, at 3. As the above cases make clear, a petitioner c~ot escape the venue requirement of CPLR 506(b )(2) by naming NYSED itself rather than the Commissioner of Education as the respondent. The enumeration in CPLR 506(b )(2) of the Commissioner necessarily extends to 8 14 of 20

15 NYSED which i1? "charged with... the exercise of all the functions of... the regents of the university [of the state of New York] and of the commissioner of education and the performance of all their powers and duties." Educ. Law 101. Furthermore, the Commissioner is required by law to "make, execute and issue in the name of [NYSED] such determinations, decisions, orders, notices and certificates as may be required for the exercise and performance of the functions, powers and duties conferred or imposed on [NYSED]." Id In other words, NYSED issues determinations based on the Commissioner's authority and is required to exercise all of the functions of the Commissioner. The Commissioner, for her part, acts on behalf ofnysed. See Matter ofbd. oftrs. of Common Sch. Dist. No. 2 v. Comm'r of Education, 33 N.Y.2d 601 (1973) ("The State Education Department, its governing body, the Board of Regents... and the Commissioner of Education are integrally related.") The Appellate Division faced and rejected just such an attempt to evade the mandatory venue requirement when a petitioner argued under the predecessor statute to CPLR 506(b )(2) in Matter of Avon Dairies v. Du Mond, 280 A.D. 116, 118 (4th Dep't 1952). There, petitioner argued that the statute that listed ''the Department of Agriculture and Markets" did not apply when the named respondent was the Commissioner of Agriculture and Markets. The court emphatically rejected the petitioner's attempt to escape the mandatory venue provision: With that view, we cannot agree. Such a narrow construction would render the provision completely ineffectual, if not meaningless.... One does not have duties or powers separate or distinct from the other; for all practical purposes they are one. The contention of the petitioner that the commissioner should be considered distinct from the department is without merit. Id.; see also Bd. of Educ. v. Office of the State Comptroller, slip Q11., Index No /07 (Sup. Ct. Suffolk Co. Jul. 24, 2007) (annexed as Appendix H) (granting 506(b)(2) motion made by Office of the State Comptroller, even though the provision lists only the Comptroller himself); 9 15 of 20

16 Mtr. of Hamilton v. Diamond, 69 Misc.2d 492 (Sup. Ct. Rockland Co. 1972) (proceeding against Department of Environmental Conservation transferred to Albany County pursuant to CPLR 506(b )(2) even though Department not listed in provision, as the functions, powers, obligations and duties of the "water resources board" had been transferred to the Department). The same is true here. CPLR 506(b)(2) does not provide any exceptions to the change of venue requirement and courts do not have discretion to consider other factors, for example a petitioner's place of residence or the location of material events. By providing that an Article 78 proceeding against NYSED "shall" be brought in Albany County, and by including no exceptions in the provision, the Legislature detennined that the benefits of uniform judicial review outweigh any potential countervailing factors, and declined to allow courts to engage in case-by-case balancing. See Ramsay, Appx. C, at 4 (rejecting petitioner's arguments that material events took place in Kings County and that a transfer to Albany County would be a hardship for petitioner, and holding that CPLR 506(b )(2) is mandatory and non-discretionary); Keniry, Appx. D, at 4 ("[T]here is no authority for an exception to CPLR 506(b )(2) based on [] where the material events took place."); Lipsman, Appx. E, at 3 (same); Rosenberg v. N.Y.S. Bd. of Regents, slip QQ:., Index No /01 (Sup. Ct. New York Co. Oct. 5, 2002) (annexed as Appendix I) ("[P]etitioner argues that it would be a hardship for him to litigate this proceeding in Albany County since he resides in New York County, he is elderly and destitute. Although this Court sympathizes with petitioner's situation, this Court has no discretion in this regard."); Axelrod, 180 A.D.2d at 906 (holding that the court was "constrained" by CPLR 506(b )(2) to dismiss petition improperly brought in the Appellate Division, "even though the interest of judicial economy suggests otherwise"); Mtr. of Posner v. Rockefeller, 33 A.D.2d 683 (1st Dep't 1969), affd, 25 N.Y.2d of 20

17 720 ( 1969) ("The order appealed from flies in the face of statute. Venue in this proceeding lies only in Albany County as to [the] Comptroller (CPLR 506, subd. [b], par. 2), and it must, therefore, be transferred.") (emphasis added). For the reasons herein, the mandatory venue provision of CPLR 506(b )(2) requires that this Article 78 proceeding against NYSED be transferred to Supreme Court, Albany County. B. The General Venue Provision of CPLR 506(b) Also Requires Tra~sfer to Albany. Although CPLR 506(b )(2) is mandatory and dispositive that venue must be transferred to Albany County, even were the Court to look beyond that provision, the general Article 78 venue provision of CPLR 506(b) also mandates the same result. In Article 78 proceedings other than those to which the mandatory venue provisions of CPLR 506 (b) (1), (2), (3) and (4) apply, CPLR 506(b) provides that: A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located... None of these bases for venue are present in Bronx County. The only connection to Bronx County is the residence of Petitioner Biridjan, (Pet., ii 1), but the petitioner's residence is not a stated basis for venue under CPLR 506(b). On the other hand, Albany County meets all of these venue requirements. The principal office ofnysed is located at the State Education Building in Albany where its Office of the Professions receives and reviews applications for licensure such as those submitted by Petitioners. For venue purposes, the "material event" "consists of the decision-making process," which affected the petitioner, not the location where the effect of the determination was felt on the petitioner. See Ward v. Sise, 127 Misc.2d 32 (Sup. Ct. Erie Co. 1984). Here, if any refusal to act or decision to deny the licenses occurred, it of 20

18 occurred in Albany at the State Education Building. Hence, Albany County is the only proper venue for this proceeding, not Bronx County. C. Respondent has Complied with the Procedural Requirements in CPLR Rule 511. NXSED has complied with all the procedural requirements necessary to seek a change of venue to Supreme Court, Albany County. CPLR Rule 511 (b) requires that a respondent seeking a change of venue serve a written demand on the petitioner. If, as here, the change of venue is sought because the county designated by the petitioner is not a proper county, the demand must be served with the answer or before the answer is served. See CPLR Rule 51 l(a). The respondent may move for change of venue within fifteen days of service of the demand if the petitioner does not serve a written consent to the change within five days of service of the demand. See CPLR Rule 511 (b). NYSED has complied with every requirement in the statute. It filed and served its Demand on petitioner by NYSCEF on September 30, 2016, before service of the answer. See Demand (Klekman Aff., Ex. C); Klekman Aff., ~ 6. Petitioners did not consent to change venue within five days of service of the Demand. See Klekman Aff., ~ 7. Respondent, therefore, is entitled to move for change of venue, and has done so within fifteen days of service of the Demand. Id., ~ 8. Accordingly, because NYSED has complied with the requirements of CPLR Rule 511, and because Albany County is the only proper venue for this proceeding, this Court should transfer this proceeding to Supreme Court, Albany County of 20

19 POINT II THE PROCEEDING AND NYSED'S TIME TO ANSWER OR MOVE AGAINST THE VERIFIED PETITION SHOULD BE STAYED PENDING THE CHANGE OF VENUE. In order to give proper weight to the mandatory venue provision contained in CPLR 506(b )(2), and because NYSED has proceeded with due diligence to change venue - advising Petitioners within five days after service of the petition that venue was improper in Supreme Court, Bronx Court, and then promptly serving its demand for a change of venue four days later, see Klekman Aff., ifif 4-6- the Court should stay any further proceedings, including NYSED's time to answer or move against the petition, pending the transfer to Albany County. See CPLR Rule 51 l(c), 2004, and 2201; Mtr. of Combs v. N.Y.S. Bd. of Parole, 862 N.Y.S.2d 807 (Sup. Ct. N.Y. Co. 2008) (staying all proceedings pursuant to CPLR Rule 51 l(c) pending the change of venue and affording respondent 30 days to answer the petition after receipt of written notice that the change has been effectuated). Judicial economy and comity support a stay in this proceeding. NYSED has not yet cross-moved to dismiss or answered the petition and there h~ve been no substantive proceedings in this matter. Staying these proceedings and NYSED's time to answer or move against the petition for the purpose of changing venue will allow the Albany Court to start proceedings with a blank slate. NYSED also requests that its time to answer or move against the petition be extended for a period of thirty days after Petitioners give the Office of the Attorney General in Albany notice of the new return date of the proceeding in Supreme Court, Albany County, which, due to the venue change and change of return date, should not be deemed an "adjournment." Courts have routinely granted the relief requested here. See Tinny, Appx. F, at 2 (granting 30-day extension of 20

20 to respond upon transfer of an Article 78 proceeding against NYSED to Supreme Court, Albany County); Ramsay, Appx. C, at 4 (same); Jones, Appx. (\.(same). If the change of venue is granted, a thirty-day period is reasonable and necessary to allow the attorney to be assigned from the Attorney General's Albany Office to represent NYSED in this proceeding to investigate the allegations in the petition and draft an appropriate response. However, if this cross-motion to change venue is denied, NYSED respectfully requests a thirty-day extension of time from receipt of notice of entry of the order denying this cross-motion to answer or move against the petition. CONCLUSION For all of the foregoing reasons, this proceeding should be transferred to Supreme Court, Albany County and should be stayed pending the requested change of venue, and NYSED's time to answer or move against the petition should be extended for the period requested in this memorandum and the notice of cross-motion. Dated: New York, New York October 13, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: ~?!~ MICHAEL R. KLEKMAN Assistant Attorney General 120 Broadway, 24th Floor New York, New York (212) Michael.Klekman@ag.ny.gov Printed on Recycled Paper of 20