Opinion
19-1852-cv
05-18-2020
EILEEN MENDEZ, INDIVIDUALLY AND AS A PARENT AND NATURAL GUARDIAN OF A.C., Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee.
FOR PLAINTIFF-APPELLANT: KARL J. ASHANTI (Peter G. Albert, on the brief), Brain Injury Rights Group, Ltd., New York, NY. FOR DEFENDANT-APPELLEE: ERIC LEE, Assistant Corporation Counsel (Richard Dearing and Scott Shorr, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of May, two thousand twenty. PRESENT: PIERRE N. LEVAL, JOSÉ A. CABRANES, ROBERT D. SACK, Circuit Judges,
FOR PLAINTIFF-APPELLANT:
KARL J. ASHANTI (Peter G. Albert, on the brief), Brain Injury Rights Group, Ltd., New York, NY.
FOR DEFENDANT-APPELLEE:
ERIC LEE, Assistant Corporation Counsel (Richard Dearing and Scott Shorr, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.
Appeal from the United States District Court for the Southern District of New York (Deborah A. Batts, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal be and hereby is DISMISSED.
Plaintiff-Appellant Eileen Mendez ("Mendez") appeals from a May 23, 2019 order of the District Court denying her motion for an order to show cause. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We dismiss Mendez's appeal for lack of jurisdiction. Mendez asserts that she seeks this Court's review of an alleged denial of an application for a preliminary injunction against Defendant-Appellee. But rather than denying a request for preliminary relief based on the merits of the case, the District Court's order merely denied Mendez an evidentiary hearing requested in the motion for an order to show cause. An order denying an evidentiary hearing, even when characterized by an appellant as an order denying an application for a preliminary injunction, is not an appealable interlocutory order. See Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 71-72 (2d Cir. 1991).
CONCLUSION
For the foregoing reasons, we DISMISS the appeal for lack of jurisdiction. We note, however, that the District Court will need to address in the first instance whether there is a live case or controversy in light of new developments relating to the payment of the students' educational services at the new school. If so, in resolving the merits of the claim in this case, the District Court is now bound by our opinion filed simultaneously herewith in the tandem cases of Ventura de Paulino v. New York City Department of Education, No. 19-1662-cv, and Navarro Carrillo v. New York City Department of Education, No. 19-1813-cv.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court