Opinion
Index No. 108538/11 Mot. seq. no. 004
01-13-2014
NEW YORK CITY PARENTS UNION; CLASS SIZE MATTERS; NEW YORK COMMUNITIES FOR CHANGE; and LEONIE HAIMSON, NOAH GOTBAUM, STEPHANIE FIELDS, LASHAWN CHERRY, JACQUELINE PEREZ, CHRIS MOSS, AMANDA JACOBS, REGINA JACOBS, REG IN A TIMBER, JERMAINE BLIGEN, NATASHA HOOPER, CHERYL AND ANGEL BLUE, SHARLENE HALE HALL, AMANDA COLON, ANGELA BALTIMORE, SANDRA E. HARPER, CYNTHIA GRIFFIN, HELENA CLAY, SONYA HAMPTON, ELLIOT WOFSE, HENRY CLEMENTE, YVONE WALKER, CYNTHIA BONANO, FAYE HODGE, and MUBA YAROFULANI, on Behalf of Their Children and Others Similarly Situated, Plaintiffs, v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor of the City School District of the City of New York, Defendants, and HARLEM SUCCESS ACADEMY CHARTER SCHOOL 1, HARLEM SUCCESS ACADEMY CHARTER SCHOOL 4, OCEAN HILL COLLEGIATE CHARTER SCHOOL, EMPOWER CHARTER SCHOOL, DEMOCRACY PREPARATORY CHARTER SCHOOL, NEW VISIONS CHARTER HIGH SCHOOL FOR HUMANITIES, NEW VISIONS CHARTER HIGH SCHOOL FOR ADVANCED MATHAND SCIENCE, TEACHING FIRMS OF AMERICA CHARTER SCHOOL, INVICTUS PREPARATORY CHARTER SCHOOL, SUMMIT ACADEMY CHARTER SCHOOL, DREAM CHARTER SCHOOL, BROOKLYN CHARTER SCHOOL, INWOOD ACADEMY FOR LEADERSHIP CHARTER SCHOOL, LA CIMA ELEMENTARY CHARTER SCHOOL, CONEY ISLAND PREPARATORY CHARTER SCHOOL, SOUTH BRONX CLASSICAL CHARTER SCHOOL, GIRLS PREPARATORY CHARTER SCHOOL, and NEW YORK CITY CHARTER SCHOOL CENTER, Intervenor-Defendants.
For plaintiffs: Arthur Z. Schwartz, Esq. Advocates for Justice For defendants: Chlarens Orsland, ACC Emily Sweet, ACC Michael A. Cardozo NYC Corporation Counsel For intervenor-defendants: Andrew R. Dunlap, Esq. Devora W. Allon, Esq. Samara L. Penn, Esq. Heather Thomas, Esq. Kirkland & Ellis LLP Bradford Jealous III, Esq. Mayer Brown LLP Theodore V. Wells, Esq. David W. Brown, Esq. Ralia E. Polechronis, Esq. David K. Kessler, Esq. Jacob T. Lillywhite, Esq. Paul, Weiss, Rifkind, et al. Avi Schick, Esq. SNR Denton
DECISION & ORDER
BARBARA JAFFE, J.: For plaintiffs:
Arthur Z. Schwartz, Esq.
Advocates for Justice
For defendants:
Chlarens Orsland, ACC
Emily Sweet, ACC
Michael A. Cardozo
NYC Corporation Counsel
For intervenor-defendants:
Andrew R. Dunlap, Esq.
Devora W. Allon, Esq.
Samara L. Penn, Esq.
Heather Thomas, Esq.
Kirkland & Ellis LLP
Bradford Jealous III, Esq.
Mayer Brown LLP
Theodore V. Wells, Esq.
David W. Brown, Esq.
Ralia E. Polechronis, Esq.
David K. Kessler, Esq.
Jacob T. Lillywhite, Esq.
Paul, Weiss, Rifkind, et al.
Avi Schick, Esq.
SNR Denton
Plaintiffs move pursuant to CPLR 2221 for leave to reargue their opposition to defendants' and intervener-defendants' motions to dismiss, which I granted on April 30, 2013. Defendants oppose.
I. RELEVANT BACKGROUND
Plaintiffs, parents of children in New York City public schools and others, brought this action challenging defendant Department of Education's (DOE) practice of allowing charter schools to operate within public school buildings without charge. Because charter schools have access to more financial resources than those available to traditional public schools, the result of co-location is that children within the same building, but enrolled in different programs, are afforded different educational amenities.
In their complaint, plaintiffs allege that DOE's failure to collect rent from charter schools has cost the city more than $96 million, deprives traditional public school students' state constitutional rights to an adequate education, and violates Education Law § 2853(4)(c), which requires contracts with co-located charter schools to be "at cost." They thus sought a declaration that the co-location policy is unlawful, an injunction compelling DOE to charge rent, and damages.
In my April 2013 decision (New York City Parents Union v Board of Educ. of the City Sch. Dist. of the City of NY, 2013 NY Slip Op 32890[U] [Sup Ct, New York County 2013]), I held that plaintiffs did not plead facts sufficient to state a constitutional claim and that their challenges to the DOE's budgetary policies must be heard, in the first instance, at the administrative level by the Commissioner of Education.
II. PLAINTIFFS' GROUNDS FOR REARGUMENT
Plaintiffs seek leave to reargue my ruling that their statutory challenge to co-location must first be brought before the Commissioner. (NYSCEF 55, 64). Relying on Shaw v Walcott, index No. 100393/13, June 7, 2013 (Sup Ct, New York County 2013), plaintiffs urge me to reconsider my ruling, contending their challenge, like that advanced in Shaw, presents only a matter of statutory construction. (NYSCEF 55, 64).
III. ANALYSIS
Reargument is proper when the court overlooked or misapprehended fact or law in determining the prior motion. (CPLR 2221[d][2]). As Shaw was decided after I rendered my decision, I could not have overlooked or misapprehended it.
Even if plaintiffs sought renewal based on Shaw, as Shaw neither binds me nor signals any change in the law, renewal is unwarranted. [See Jackson v Westminster House Owners Inc., 52 AD3d 404, 405 [1st Dept 2008] [renewal improper; appellate decision was neither new law nor clarification of prior law]; Pinewood Apt. Assoc. v Wilcox, 51 AD3d 751 [2d Dept 2008] [change in administrative agency's interpretation of statute would not have altered prior determination in which court did not defer to agency and interpreted said statute differently]; cf. [Patterson v New York State Dept. of Correctional Services, 71 AD3d 1349, 1350 [3d Dept 2010], lv denied 15 NY3d 703 [Court of Appeals decision constituted sufficient change; renewal proper]; 515 Ave. I Corp. v 515 Ave. I Tenants Corp., 44 AD3d 707, 708 [2d Dept 2007] [same]). In any event, Shaw is significantly distinguishable.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that plaintiffs' motion for leave to reargue is denied.
ENTER:
__________
Barbara Jaffe, JSC
DATED: January 13, 2014
New York, New York