Opinion
104300/11.
Decided May 20, 2011.
Phillips Nizer LLP, by MEAGAN A ZAPOTOCKY, JON S BROOKS and MARC A LANDIS, New York, NY, for Petitioners.
New York City Law Department (Office of the Corporation Counsel) by Emily Sweet, New York City Law Department, New York, NY, for Respondents.
ARNOLD PORTER by ANTHONY D. BOCCANFUSO, NEW YORK, NY, for Intervenor SACS.
Mary Ellen Clerkin, Assistant Counsel, New York State Education Department, Albany, NY, for Amici NYSDOE and the Commissioner.
Motion sequence 003 (to intervene) and motion sequence 004 (for amici curiae status) are consolidated for joint disposition and decided herein.
Petitioners, who are children and the parents of children who attend three of the five existing high schools located in the Brandeis Education Campus ("Brandeis Campus") in Community School District 3, commenced this Article 78 proceeding against respondents, the Board of Education of the City School District of the City of New York (a/k/a the Panel for Educational Policy) ("PEP"), the New York City Department of Education ("DOE"), and the Chancellor of the City School District of the City of New York (the "Chancellor") challenging a vote by PEP approving the co-location of Upper West Success Academy Charter School ("SACS") in the Brandeis Campus and seeking a judgment pursuant to CPLR 7806 enjoining such co-location.
Factual Background
SACS is a not-for-profit charter elementary school, which plans to open in August 2011 with kindergarten and first grade classes. On February 2, 2011, PEP voted to co-locate SACS in the Brandeis Campus, which currently houses five public high schools. A "co-location" means that two or more school organizations are located in the same building, often sharing common spaces such as an auditorium, gymnasium and cafeteria.
The proposed intervenors are parents and their children (the "student intervenors") (collectively, the "movants") who reside within School District 3. The student intervenors are zoned to attend a public elementary school that received a grade of "D" or "F" for student performance for the 2009-2010 school year. These children have all been selected by lottery to attend kindergarten at SACS.
The proposed intervenors now move pursuant to CPLR 7802(d) to intervene as "interested persons," arguing that they have a real and substantial interest in the outcome of the proceedings, since this Article 78 proceeding threatens SACS's ability commence classes this fall for the 184 children who have been accepted to SACS. As the co-location constitutes a "significant change in utilization, the Chancellor must prepare an Educational Impact Statement ("EIS"), which must be made publicly available at least six months before the first day of the next school year. Thus, since the first day of SACS's next school year is less than four months away, it would be too late for SACS to find another school building to implement the co-location by the beginning of its school year in August. If the PEP's vote is annulled, SACS may not be able to open this fall, and the proposed intervenors could lose the option of sending their child to SACS. The movants point out that the New York State Education Commissioner (the "Commissioner") has agreed that charter schools are "interested persons," as he has stated that they are necessary parties to co-location proceedings before him and has repeatedly required, sua sponte, that charter schools be joined as a part of such proceedings. Further, to the extent that the petitioners have standing to bring this Article 78 proceeding, the proposed intervenors, who are directly impacted by the outcome of this action, stand at least in the same position as the petitioners.
In opposition, petitioners argue that the motion is procedurally defective in that the motion is unaccompanied by any proposed pleading which interposes an additional claim or objection to the co-location process or PEP vote. Further, the movants lack standing to intervene, especially in the absence of any pleading to discern whether they have standing to assert any claims. But for the PEP vote approving the co-location, SACS possessed no independent right to co-locate in the Brandeis Campus, and the PEP vote did not vest in SACS any right to co-locate in the Brandeis Campus, especially since the co-location cannot take effect until the current school year ends. Further, "interested persons" means more than generally interested in the result of the Article 78 proceeding, and requires that the person have a legally cognizable claim to intervene. Not a single parent intervenor commits to send his or her child to SACS, but only "intends" to send their child to SACS as one of their "top choices." And, since Education Law § 2853(3)(a) permits a charter school to be located "on a private work site, in a public building or in any other suitable location," and no advance-notice requirements exist for such alternative locations, SACS could find an alternative location to open this fall in Manhattan's Upper West Side with the $3,000,000 cash-on-hand available from its parent, the Success Charter Network (as stated in its Financial Statement).
In reply, the proposed intervenors argue that their motion is procedurally proper, in that they have raised an objection in point of law in their motion to dismiss the petition, instead of in an answer, as permitted under CPLR 7804(f), and no proposed pleading is required. Under CPLR 7804(d), the answering affidavit need only "state pertinent and material facts showing the grounds of the respondent's action complained of" and the intervenor's motion included affidavits from the parent intervenors setting forth the factual bases for their request for dismissal. Such affidavits, stating the "pertinent and material facts showing the grounds of the respondent[s'] action complained of," also satisfies CPLR 1014's requirement for a proposed pleading accompanying a motion to intervene. In any event, the Court may excuse any technical deficiency, as no prejudice exists. Petitioners are on notice of the underlying bases for the request to intervene and dismiss the proceeding. And, since the Court may, at "any stage of an action" "permit a mistake, omission, defect, or irregularity . . . to be corrected," the proposed Verified Answer supplied in reply should be accepted.
Further, the cases petitioners cite are distinguishable, and under controlling caselaw, the proposed intervenors are "interested persons." While no co-location will take effect until after the end of the current school year, this fact has no bearing on whether the outcome of this proceeding will directly impact the proposed intervenors.
Moreover, SACS will not be able to open if it is denied access to a public facility. Success Network is a not-for-profit organization that depends on donations and grants. Success Network operates nine schools, and any amount it may hold in reserve to cover upcoming operating expenses does not belong to any one of the schools and cannot be diverted to SACS to cover the extraordinary cost of renting a school building to accommodate 184 students and staff. There is no guarantee that SACS would be placed in a public facility in future years, so there could be an almost one million dollar deficit due to rental expenses every year. Such expenses would result in severe cutbacks in educational programming such as an extended school day, extensive teacher training, use of technology, and enrichment activities, which would undermine the success of SACS. Thus, the proposed intervenors have "'a real and substantial interest in the outcome of the proceedings," and are accordingly "interested persons."
The movants point out that none of the student intervenors are enrolled at SACS because SACS is not yet open. And, since the student intervenors were accepted by lottery, they are technically enrolled for the upcoming school year, unless they release their spot. Many of the parent intervenors have provided sworn affidavits, attesting that they "intend" to send their children to SACS, which unequivocally expresses their firm commitment to send their children to SACS if the school opens this school year. Finally, any of petitioners' purported injuries have no impact on whether the proposed intervenors are "interested persons" under Section 7802(d).
In the alternative, in the event that the Court does not grant leave to intervene, the Court should grant the proposed intervenors status as amici curiae and admit their papers.
Similarly, the New York State Education Department and the Commissioner (collectively, "NYSED") seek leave to participate in this proceeding as amici curiae and to seek dismissal of this proceeding on the grounds that the Commissioner has exclusive original jurisdiction over challenges to DOE's charter school co-location determinations, and petitioners have not pursued their administrative remedy before the Commissioner.
Education Law § 2853(3)(a-5), which provides for expedited appeals to the Commissioner under Education Law § 310, including challenges to DOE's determination to locate or co-locate a charter school within an existing public school building, evidence a Legislative intent to give the Commissioner exclusive original jurisdiction over such challenge, subject to later review in an Article 78 proceeding. Chapter 101 of the Laws of 2010, which amended § 2853(3) pertaining to co-locations in an existing public school building, provided an extremely expedited timeline for appeals to the Commissioner relating (1) determinations by the New York City School District to locate or co-locate a charter school within a public school building; (2) implementation of and compliance with the BUP; and (3) revision of a BUP that is appealed on the grounds that the revision fails to meet the standards set forth in Education Law § 2853(3)(a-3)(2)(B). The New York State Education Department also amended 8 NYCRR Parts 275 and 276, the regulations governing appeals to the Commissioner, to accommodate the extremely short timeline. The expedited timelines mandated by the Legislature for appeals to the Commissioner are far more stringent than those required for Article 78 proceedings. If the Legislature had not intended that this expedited remedy before the Commissioner be used in all co-location cases arising out of New York City, then it would not have mandated such a tight schedule for § 310 co-location appeals without establishing similarly expedited procedures for Article 78 proceedings.
NYSED has a unique interest in the issue of exclusive original jurisdiction because the Legislature provided a specific, expedited process for appealing co-location decisions by the DOE, and evidenced its intent that the Commissioner should have exclusive primary jurisdiction over such appeals. In addition, the Commissioner has an interest in the recognition of his appeal jurisdiction because he is the constitutionally and statutorily empowered chief executive of the State's entire education system. The Commissioner is vested with general supervision over all schools and institutions subject to the Education Law. Any bypass of the expedited appeal process so as to permit an Article 78 proceeding up to four months after the action complained of, would render the expedited appeal remedy meaningless.
Further, when a court and an administrative agency each have the power to address a dispute that falls within the agency's special competence, the doctrine of primary jurisdiction requires the court to refrain from hearing the matter until the agency has rendered a final determination. A co-location determination requires both an EIS for the public school and a BUP for the coordinated use of the public school and charter school. Some of the factors that could be challenged implicate pedagogical discretion and expertise, such as potential impacts of proposed school changes on affected students; effect of the changes on the public school's academic performance, particularly if the school is already identified as a school in need of improvement; and feasibility of BUP allocations for shared resources and space such as libraries and gymnasiums, which again could have educational impact on students. An initial appeal to the Commissioner would ensure that expertise and standards are applied uniformly; that the same entity (DOE) would not be subject to inconsistent court decisions in different parts of the City; and that a fair and informative decision would be provided for a court's review in an Article 78.
Further, if the petitioners elect to commence an appeal to the Commissioner, any issues regarding the application of the 30-day statute of limitations for § 310 appeals will be addressed by the Commissioner within the context of the appeal.
In opposition, petitioners argue that NYSED's motion must be denied because the issue it seeks to address, i.e., the Commissioner's exclusive original jurisdiction to hear challenges to decisions to co-locate a charter school within a public school building, merely reiterates an issue already addressed by adequately-represented respondents. Petitioners argue that NYSED failed to satisfy their burden on the motion, in that (1) the motion was not brought by order to show cause, denying this Court the opportunity to set an expedited return date so that it could be considered and determined prior to, and independent of, the Return Date of the Verified Petition; (2) failed to adequately addresses its interest in the issues; (3) the existing respondents either have advanced or are capable of advancing the same arguments NYSED intends to make; (4) the motion does not address the substantial prejudice to petitioners; and (5) the motion does not address whether the case concerns questions of important public interest. Since NYSED failed to bring its motion by order to show cause, granting its motion now will, by necessity, delay the Return Date of the Petition, because petitioners will need an opportunity to oppose the merits of NYSED's motion.
In reply, NYSED argues that an order to show cause would be in contravention of CPLR § 406, which requires that motions made in a special proceeding be returnable on the return date of the petition.
NYSED also adds that the Commissioner is the very party for whom the Legislature crafted the exclusive original remedy of an expedited appeal and he has a unique interest in asserting to this Court that the Court should not make rulings, regarding procedural issues in a subsequent appeal to the Commissioner, that could impinge on the Commissioner's discretion, such as application of the 30-day period of limitations for filing Education Law § 310 appeals.
Additionally, at the time the motion was served, the movants had not received any papers from another party containing an argument about the exclusive original jurisdiction of the Commissioner, and so could not have addressed this issue in the moving papers.
Petitioners are not prejudiced by having to draft separate papers on the amicus argument, because the proposed argument is already in the memorandum of law served upon petitioners, and is inextricably connected to the issues in the underlying Article 78 proceeding.
Lastly, the public interest was highlighted by the recognition that the exclusive original jurisdiction provisions of Education Law § 2853(3)(a-5) applied to "co-locations planned within New York City, which has the most complex space and building issues in the State" and that the expedited appeal process would "ensure timeliness of the decisions, consistent application of criteria across the five counties of New York City which nevertheless constitute one school district, and the application of pedagogical expertise and discretion."
Discussion Intervention
CPLR 7802(d) states that a court "may allow other interested persons" to intervene in an Article 78 proceeding. CPLR 7802(d) grants the Court "broader authority to allow intervention in an article 78 proceeding than is provided pursuant to CPLR 1013 in an action, which requires a showing that the proposed intervenor's claim or defense and the main action have a common question of law or fact' or CPLR 1012, concerning intervention as of right ( Greater N Y. Health Care Facilities Ass'n v DeBuono, 91 NY2d 716, 720, 674 NYS2d 634, 636; Ferguson v Barrios-Paoli, 279 AD2d 396, 398-399 [1st Dept 2001] [CPLR 7802 (d) confers "upon the court greater latitude in allowing intervention than CPLR 1013"]). The Court also has discretion to permit intervention at any time ( Greater N Y. Health Care Facilities Ass'n v DeBuono, supra). "However, interested' means more than generally interested in the result of an article 78 proceeding. A person must have a legally cognizable claim to intervene under CPLR 7802 (d) as a party intervenor in an article 78 proceeding ( New York Times Co. v. City of New York Fire Dept., 195 Misc2d 119, 754 N.Y.S.2d 517 [Sup. Ct., New York County, 2003] citing Ferguson v Barrios-Paoli, 279 AD2d 396, 398-399 [1st Dept 2001]).
It has been also held that a "party may be permitted to intervene . . . if the proposed intervenor's claim and that of the original petitioner are based on the same transaction or occurrence. Also, the proposed intervenor and the original petitioner must be so closely related that the original petitioner's claim would have given the respondent notice of the proposed intervenor's specific claim so that the imposition of the additional claim would not prejudice the respondent ( Greater New York Health Care Facilities Ass'n v. DeBuono, 91 NY2d 716, 721, 674 N.Y.S.2d 634).
The proposed intervenors' position, relying on In re Elinor Homes Co. v St. Lawrence ( 113 AD2d 25, 28, 494 NYS2d 889, 892 [2d Dept 1985], Bernstein v. Feiner , 43 AD3d 1161 , 1162, 842 N.Y.S.2d 556, 558 [2d Dept 2007] and Rent Stabilization Ass 'n of N.Y.C. v. NY. State Div. of Hous. Cmty. Renewal, 252 AD2d 111, 116,681 N.Y.S.2d 679, 683 [3d Dept 1998]) that the proper standard for intervention in an Article 78 proceeding is whether the intervenors have "'a real and substantial interest in the outcome of the proceedings'" is unpersuasive, in light of other First Department and New York County Supreme Court caselaw.
At the outset, that the proposed intervenors failed to initially supply the Court with a formal proposed Answer is not fatal to their motion, in light of the fact affidavits of the parent intervenors submitted with their motion and the fact that a proposed Answer was later submitted in reply ( see Ryder v Travelers Ins. Co., 37 AD2d 797, 797, 324 N.Y.S.2d 804, 806 [4th Dept 1971] [stating that although the motion was "defective for lack of a copy of movant's proposed pleading, the full affidavit in support of the motion made very clear the proposed defense and appellant was not prejudiced by absence of the pleading, which has since been served on it"]). Further, CPLR § 7804(f) provides that "The respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer. If the motion is denied, the court shall permit the respondent to answer, upon such terms as may be just. . . ." Here, the proposed intervenors raised their objections to the petition in their motion to dismiss the petition, and upon denial of such motion, would be permitted to submit an Answer nonetheless. Thus, denial of the motion to intervene for failure to submit a proposed pleading is unwarranted.
Here, the proposed intervenors established that they are "interested persons" with a legally cognizable claim to intervene under CPLR 7802 (d). Petitioners, who are children attending one of the five high schools at the Brandeis Campus, and their parents, seek to annul the PEP vote which granted SACS the right to co-locate in the Brandeis Campus starting August of 2011. Contrary to petitioners' contention, the PEP vote, if affirmed, grants the SACS the right to co-locate in the Brandeis Campus, and grants the intervenor students (in conjunction with the lottery), the right to attend SACS at this location. A determination by the Court annulling the PEP vote would directly affect and prevent SACS from so co-locating, and prevent the student intervenors from attending school at SACS at the subject location this Fall. Further, the assertion of SACS and the parent and student intervenors that they have a right to commence construction in order to go forward with the plans to co-locate arise from the same PEP vote that petitioners claim.
Whether SACS might be able to procure additional space by this Fall does not render invalid the proposed intervenors' claim that, inter alia, that the PEP vote was valid. And, that the affidavits of the parent intervenors express an "intent" to send the student intervenors to SACS is inconsequential, as SACS's ability to open this Fall remains uncertain at this juncture.
Likewise, that SACS could conceivably rent private space has no bearing on whether SACS should be joined in this case as an interested party.
Therefore, intervention by the proposed intervenors as respondents in this action is warranted.
Amici Curiae
"[T]he function of an amicus curiae' is to call the court's attention to law or facts or circumstances in a matter . . . that might otherwise escape its consideration; it is a privilege and not a right; he is not a party, and cannot assume the functions of a party; he must accept the case before the court with issues made by the parties, and may not control the litigation" ( New York State Senator Kruger v Bloomberg, 1 Misc 3d 192, 768 N.Y.S.2d 76 [Sup. Ct., New York County 2003]).
The Court in New York State Senator Kruger stated the elements to be considered on an application for amicus curiae status, as follows:
(1) whether the movant seeking amicus curiae status moves by order to show cause; a motion by order to show cause seeking amicus is the preferable procedure as the trial court can then set an expeditious return date and procedure for providing notice by specifying how the parties are to be served, so as not to interfere with the main action;
(2) whether the affidavit/affirmation in support indicates the movant's interest in the issues to be briefed and sets forth the issues, with a proposed brief attached;
(3) whether the affidavit/affirmation in support indicates:
(a) a showing that the parties are not capable of a full and adequate presentation and that movant could remedy this deficiency; or (b) that movant would invite the court's attention to the law orarguments which might otherwise escape its consideration; or (c) that its amicus curiae brief would otherwise be of special assistance to the court; and
(4) whether the amicus curiae application or status would substantially prejudice the rights of the parties, including delaying the original action/proceeding; and
(5) whether the case concerns questions of important public interest.
Id. at 198.
As to the first factor, whether the movant seeks amicus curiae status by order to show cause is not dispositive, but preferable, and is a factor to consider so as not to cause an unreasonable delay of the main proceeding. And, the motion included arguments pertaining to the Commissioner's exclusive jurisdiction, thereby eliminating any need for the remaining parties to seek additional time to oppose the merits of the proposed intervenors' arguments. Further, as pointed out by NYSED, CPLR 406 provides that "[m]otions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time." Thus, it cannot be said that the motion by NYSED, made returnable on the return date of the Article 78 proceeding, is procedurally or fatally defective.
The second factor is sufficiently addressed, in that NYSED clearly articulated its interest in petitioners' challenge to the PEP vote. It cannot be contested that under Education Law §§ 310 and 2853(a-5): (1) the petitions in such appeals concerning co-locations of charter schools in public high schools must be filed with the Commissioner within 30 days of the challenged decision or action; (2) the DOE must respond to the petition within 10 days; and (3) the petition must be dismissed, adjudicated or disposed of by the Commissioner within 10 days of receipt of the DOE's response. NYSED explained the exclusive jurisdiction the Commissioner enjoys over challenges to co-locations of charter schools in public school buildings, and the need to ensure consistent decisions effecting the "proposed school changes on affected students"; "the changes on the public school's academic performance, particularly if the school is already identified as a school in need of improvement"; and the "feasibility of BUP allocations for shared resources and space such as libraries and gymnasiums, which again could have educational impact on students."
As to the third factor, the Commissioner's interest in preserving his jurisdiction over the issues raised in the Article 78 proceeding are unique and distinct from the interests of any other party to this proceeding. The Commissioner is, in fact, the party whose exclusive jurisdiction is arguably undermined by this Article 78 proceeding. The Court therefore finds that although respondents raised the argument that petitioners failed to exhaust their administrative remedies by failing to first appeal to the Commissioner, NYSED's brief is of "special assistance" to the Court.
Further, as to the fourth and fifth factors, there is no showing that the amicus curiae application or status would substantially prejudice the rights of any of the parties, or would delay the Article 78 proceedings, and the facts of the case and the Commissioner's jurisdiction over the issues raised clearly concern a matter of important public interest.
Therefore, upon consideration of the above factors, NYSED's application for leave to appear in this action as amicus curiae is warranted.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the motion by the proposed intervenors pursuant to CPLR 7802(d) to intervene in this Article 78 proceeding as respondents is granted, and the alternative request for participation in this proceeding as amici curiae is moot; and it is further
ORDERED that NYSED's application for leave to participate in this proceeding as amici curiae, and to file a brief to explain that the Commissioner of Education has exclusive original jurisdiction to hear challenges to decisions by the City School District of the City of New York to locate or co-locate a charter school within a public school building, is granted; and it is further
ORDERED that the Court will consider the arguments by NYSED and the proposed intervenors in support of dismissal of the Article 78 proceeding in conjunction with the submissions of the remaining parties in the underlying Article 78 proceeding.
This constitutes the decision and order of the Court.
Motion sequence 003 (to intervene) and motion sequence 004 (for amici curiae status) are consolidated for joint disposition and decided herein.
Based on the accompanying Memorandum Decision, it is hereby
ORDERED that the motion by the proposed intervenors pursuant to CPLR 7802(d) to intervene in this Article 78 proceeding as respondents is granted, and the alternative request for participation in this proceeding as amici curiae is moot; and it is further
ORDERED that NYSED's application for leave to participate in this proceeding as amici curiae, and to file a brief to explain that the Commissioner of Education has exclusive original jurisdiction to hear challenges to decisions by the City School District of the City of New York to locate or co-locate a charter school within a public school building, is granted; and it is further
ORDERED that the Court will consider the arguments by NYSED and the proposed intervenors in support of dismissal of the Article 78 proceeding in conjunction with the submissions of the remaining parties in the underlying Article 78 proceeding.
This constitutes the decision and order of the Court.