Ignizio v. The City Of N.Y.
| Decision Date | 06 December 2010 |
| Docket Number | Motion No. :002,Motion No. : 001,Motion No. :003,Motion No. :006,Index No.: 80184/10,Motion No. :005,Motion No. :004 |
| Citation | 2010 NY Slip Op 33363 |
| Parties | VINCENT M. IGNIZIO, as NYC Councilmember of the 49th District, JAMES S. ODDO, as NYC Councilmember of the 50th District, DEBORAH ROSE, as NYC Councilmember of the 49th District, ERIC ULRICH, as NYC Councilmember from the 32nd District, Queens County, THERESA BARB A, as parent/guardian of KAITLYN NICOLE BARBA, SCOTT H. FULLMAN, as parent/guardian of DANIEL SCOTT FULLMAN, EDWARD P. MARONE, as parent/guardian of AMBER LEE MARONE, TRACY ROSENBERG, as parent/guardian of SAMANTHA ROSE ROSENBERG, STAGEY SCIARRINO, as parent/ guardian of DANIELLE SCIARRINO, STACEY SCIARRINO, as parent/guardian of MATTHEW SCIARRINO III, and MAUREEN McVEIGH, parent/guardian of KYLA TACOPINA. Petitioners, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, JOEL I. KLEIN, AS CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. |
| Court | New York Supreme Court |
2010 NY Slip Op 33363
VINCENT M. IGNIZIO, as NYC Councilmember of the 49th District, JAMES S. ODDO, as NYC Councilmember of the 50th District, DEBORAH ROSE,
as NYC Councilmember of the 49th District, ERIC ULRICH, as NYC Councilmember from the 32nd District, Queens County, THERESA BARB A, as parent/guardian of KAITLYN NICOLE BARBA, SCOTT H. FULLMAN,
as parent/guardian of DANIEL SCOTT FULLMAN, EDWARD P. MARONE, as parent/guardian of AMBER LEE MARONE, TRACY ROSENBERG,
as parent/guardian of SAMANTHA ROSE ROSENBERG, STAGEY SCIARRINO, as parent/ guardian of DANIELLE SCIARRINO, STACEY SCIARRINO,
as parent/guardian of MATTHEW SCIARRINO III, and MAUREEN McVEIGH, parent/guardian of KYLA TACOPINA. Petitioners,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, JOEL I. KLEIN,
AS CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.
Index No.: 80184/10
Motion No. : 001
Motion No. :002
Motion No. :003
Motion No. :004
Motion No. :005
Motion No. :006
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
DCM Part 4
Dated: December 6, 2010
Present: Hon. John A. Fusco
The following papers numbered 1 to 20 were marked fully submitted on this 29th day of October, 2010:
Papers/Numbered
Order to Show Cause by Petitioners with supporting Papers and Exhibits (dated June 24. 2010)...........1
Notice of Removal by Respondents with Exhibits (dated June 29, 2010)................ 2
Notice of Removal to Federal Court by Respondents (dated June 30. 2010)...............................3
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Emergency Order to Show Cause with Temporary Restraining Order by Petitioners with supporting Papers and Exhibits (dated August 16, 2010).............. 4
Amicus Curiae Brief by Community Education Council 31 (dated August 26, 2010)................................................................... 5
Respondents' Verified Answer and Opposition to Petitioners' Verified Petitions as Amended and Request for Injunctive Relief with Exhibits (dated September 3, 2010)..........................6
Notice of Petition by Intervenors-Petitioners with supporting Papers and Exhibits (dated September 5, 2010)..........7
Respondents' Memorandum of Law in Opposition to the Verified Petitions as Amended and in Support of Vacatur of the TRO (dated September 5, 2010)...........................8
Affirmation of Janice Birnbaum in Opposition to Intervention by Respondents (dated September 6, 2010)..............................9
Respondents' Verified Answer to Intervenors-Petitioners McVeigh's Verified Petition with Exhibits (dated September 28, 2010)................................ 10
Respondents' Memorandum of Law In Opposition to the Verified Petition of Maureen McVeigh and In Support of Judgment In Respondents' Favor (dated September 28, 2010).................................11
Respondents' Verified Answer to the Verified Petition of Intervenors-Petitioners with Exhibits (dated October 7, 2010)..........................12
Findings of Fact and Conclusions of Law with Motion to Conform Pleadings to the Proof by Petitioners (dated October 12, 2010).............................13
Findings of Fact and Conclusions of Law Motion to Conform the Pleadings to the Proof by Intervenors-Petitioners (dated October 12, 2010)..................................14
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Respondents' Proposed Findings of Fact and Conclusions of Law (dated October 15, 2010)...............15
Amended Response to Respondents Findings and Conclusions and Motion for a Directed Verdict based on Admissions by Intervenors-Petitioners (dated October 25, 2010)....................... 16
Affirmation of Janice Birnbaum by Respondents with supporting Papers and Exhibits (dated October 27, 2010).............17
Respondents' Response to the Staten Island Petitioners "Findings of Fact and Conclusions of Law with Motion to Conform Pleadings to the Proof (dated October 27, 2010).......................18
Respondents' Response to Intervenors' "Findings of Fact and Conclusions of Law with Motion to Conform Pleadings to the Proof (dated October 27, 2010)..............19
Affirmation Amendment to the Affirmation of Janice Birnbaum by Respondents with Exhibits (dated October 29, 2010)..........................20
A. BACKGROUND
1. Procedural History
On June 24, 2010, petitioner Vincent M. Ignizio, as NYC Councilmember of the 51stDistrict, James S. Oddo, as NYC Councilmember of the 50th District, Deborah Rose, as NYC Councilmember of the 49th District, Theresa Barba, as Parent/Guardian of Kaitlyn Nicole Barba, Scott H. Fullman, as Parent/Guardian of Daniel Scott Pullman, Edward P. Marone, as Parent/Guardian of Amber Lee Marone, Tracy Rosenberg, as Parent/Guardian of Samantha Rose Rosenberg, Stacey Sciarrino, as Parent/Guardian of Danielle Sciarrino, Stacey Sciarrino, as
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Parent/Guardian of Matthew Sciarrino III, (''Petitioner Ignizio") brought this Article 78 proceeding to challenge the determination by the Department of Education for the City of New York which eliminated funding for several variances that provided yellow-bus pupil transportation for certain 7th and 8th grade students.
On August 3, 2010, respondents answered and sought to remove the action to the United States District Court for the Eastern District of New York, based upon certain allegations of Petitioner Ignizio. which sounded in equal protection. Upon the withdrawal of these claims by Petitioner Ignizio on August 12, 2010, the matter was remanded to this court on August 16, 2010.
Upon remand, Petitioner Ignizio brought a motion to restore the matter to this Court's calendar, and for a temporary restraining order to halt the elimination of the funding and allow continuation of the yellow-bus pupil transportation system for certain 7th and 8th grade students, until the conclusion of the Article 78 proceeding. This court granted petitioners' request on August 16, 2010. This order was appealed to the Appellate Division, Second Department, and the temporary restraining order was stayed.
On September 7, 2010, Petitioner Eric Ulrich, as NYC Councilmember from the 32nd District, and Maureen McVeigh, parent/guardian of Kyla Tacopina brought a petition to intervene in this Article 78 since Petitioner McVeigh had a child who resided in Breezy Point and was affected by the decision to terminate the funding for certain yellow-bus pupil transportation. Respondents interposed an answer to this petition on October 8, 2010.
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The parties engaged in discovery practice, and respondents asserted executive privilege over several documents, refusing to disclose the documents' contents. On September 15, 2010, the court appointed Special Referee to hold an in camera review of such documents.
On September 14, 2010, this court granted Petitioner Ulrich's petition to intervene and in the interest of judicial economy, consolidated the two petitions under the Ignizio petition and scheduled a hearing. On September 20, 2010, this court commenced a hearing on the issues within the now-consolidated Article 78 proceeding. Such hearing concluded on September 29, 2010 and the decision was reserved. The parties submitted findings of fact and conclusions of law and such submissions were complete on October 29, 2010.
2. Factual Findings
Petitioners Vincent M. Ignizio, James S. Oddo, and Deborah Rose are New York City Council Members in the Borough of Richmond. Petitioner Eric Ulrich is a New York City Council Member in the Borough of Queens. Petitioners Kaitlyn Nicole Barba, Daniel Scott Fullman. Amber Fee Marone, Samantha Rose Rosenberg, Danielle Sciarrino and Matthew Sciarrino III, are 7th and 8th grade students who reside in the Borough of Richmond affected by the discontinuance of the yellow-bus pupil transportation service for certain 7th and 8th grade students, and represented by their parents/guardians Theresa Barba, Scott H. Pullman, Edward P. Marone, Tracy Rosenberg, Stacey Sciarrino. in this proceeding. Petitioner Kyla Tacopina is a junior high school student who resides in Breezy Point, in the Borough of Queens, affected by the discontinuance of the yellow-bus pupil transportation service for certain 7th and 8th grade students and represented by her parent/guardian Maureen McVeigh in this proceeding.
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Although the basis for the Article 78 proceeding is not specified, a careful reading finds that it requests certiorari of, or a writ of mandamus regarding, the decision of the Department of Education which eliminated the funding for the variance which provided yellow-bus pupil transportation for certain 7th and 8th grade students, including those in Staten Island and the Roekaway Peninsula. As the petition appears to request a determination that such decision was made in an arbitrary and capricious manner, this Court determines that a writ of certiorari to review is appropriate.
The New York Constitution, article XI, § 1 reads: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." Pursuant to N.Y. Education Law §3635(l)(c), a city school district is not required to provide pupil transportation to and from schools, but if it does so, it must offer it equally to all pupils in similar circumstances. Pursuant to this regulation, the Chancellor of the Department of Education ("DOE") set forth the pupil transportation policy for the DOE in Chancellor's Regulation A-801, dated September 5, 2000, superseding A-801 dated September 1, 1988. Under A801 §1(2). students in grades 7-12 who reside 1.5 miles or more from school are eligible for full fare student MctroCards for use on the subway and buses run by the Metropolitan Transit Authority. Students in grades 7-12. who reside between 0.5 miles and less than 1.5 miles, are eligible for half fare student MetroCards for use on the subway and buses. Id. These students are not otherwise provided transportation services to and from school. However, the regulation also provides for...
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