Opinion
Index No. 905413-21
06-07-2022
In the Matter of the Application of Beatrice WEBER on Behalf of Herself and Her Minor Son A.B. and David J. Shapiro, Petitioners-Plaintiffs, v. The NEW YORK STATE EDUCATION DEPARTMENT; Betty A. Rosa, in Her Capacity as the Commissioner of Education of the State of New York; the New York City Department of Education ; Meisha Porter, in Her Capacity as Chancellor of the New York City Department of Education; and Yeshiva Mesivta Arugath Habosem, Respondents-Defendants.
SHAPIRO LITIGATION GROUP, PLLC, David J. Shapiro, Esq., 1460 Broadway, Suite 7019, New York, New York 10036, Counsel for Petitioners-Plaintiffs Beatrice Weber on Behalf of Herself and her Minor son A.B. and David Shapiro HON. LETITIA JAMES, Attorney General for the State of New York, (Helena O. Pederson, Esq., Assistant Attorney General) The Capitol, Albany, New York 12224-0341, Counsel for Respondents-Defendants New York State Education Department and Commissioner Betty A. Rosa CORPORATION COUNSEL OF THE CITY OF NEW YORK, Georgia M. Pestana, Esq., (Philip S. Frank, Esq., Assistant Corporation Counsel) 100 Church Street, New York, New York 10007, Counsel for Respondents-Defendants New York City Department of Education and Meisha Porter, Chancellor of the New York City Department of Education TROUTMAN SANDERS, LLP, Avi Schick, Esq., 875 Third Avenue, New York, New York 10022, Counsel for Respondent-Defendant Yeshiva Mesivta Arugath Habosem
SHAPIRO LITIGATION GROUP, PLLC, David J. Shapiro, Esq., 1460 Broadway, Suite 7019, New York, New York 10036, Counsel for Petitioners-Plaintiffs Beatrice Weber on Behalf of Herself and her Minor son A.B. and David Shapiro
HON. LETITIA JAMES, Attorney General for the State of New York, (Helena O. Pederson, Esq., Assistant Attorney General) The Capitol, Albany, New York 12224-0341, Counsel for Respondents-Defendants New York State Education Department and Commissioner Betty A. Rosa
CORPORATION COUNSEL OF THE CITY OF NEW YORK, Georgia M. Pestana, Esq., (Philip S. Frank, Esq., Assistant Corporation Counsel) 100 Church Street, New York, New York 10007, Counsel for Respondents-Defendants New York City Department of Education and Meisha Porter, Chancellor of the New York City Department of Education
TROUTMAN SANDERS, LLP, Avi Schick, Esq., 875 Third Avenue, New York, New York 10022, Counsel for Respondent-Defendant Yeshiva Mesivta Arugath Habosem
Adam W. Silverman, J. "Today [education] is a principal instrument in awakening the child to cultural values, in preparing him [or her] for later professional training, and in helping him [or her] to adjust normally to his [or her] environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education"
Brown v. Board of Ed. of Topeka , Shawnee County, Kan. , 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
INTRODUCTION
Petitioner-Plaintiff Beatrice Weber on behalf of herself and her son A.B. brings this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment pursuant to CPLR 3001 to challenge an administrative determination issued by the New York State Education Department ("SED") Commissioner on April 21, 2021 ("the Determination"). The Determination dismissed her Education Law § 310 petition which had requested a Commissioner's order requiring that the New York City Department of Education ("DOE") ensure Respondent-Defendant Yeshiva Mesivta Arugath Habosem ("YMAH") complies with the State's compulsory education law. This case also includes a separate challenge by Petitioner Weber's attorney, David J. Shapiro, brought on his own behalf, regarding a request pursuant to the Freedom of Information Law (see Public Officers Law art 6 ["FOIL"]) to obtain records withheld by DOE. Petitioners seek a judgment: "1. Ordering [SED] to compel YMAH to teach the subject mandated by [ Education Law § 3024 and 801]; 2. Annulling the [Determination]; 3. Declaring that the right to a ‘sound basic education’ guaranteed by [ NY Const art XI, § 1 ] applies to Petitioner Weber's minor son who attends a nonpublic religious school in New York State; and 4. Ordering DOE to produce certain records duly requested by Petitioner Shapiro under [FOIL] concerning the DOE's investigation of YMAH."
Notably, Petitioners-Plaintiffs describe the moving document in the § 310 proceeding as a "petition" while Respondents’ each refer to that same document as an "appeal."
Respondents-Defendants New York State Education Department and its Commissioner, Betty A. Rosa, are collectively referred to herein as the State Respondents and Respondents-Defendants New York City Department of Education and its Chancellor, Meisha Porter, are collectively referred to herein as the City Respondents.
Presently before the Court are seven motions, including motions to dismiss filed by the State Respondents as well as Respondent YMAH, a motion to sever/transfer filed by the City Respondents, and various discovery motions filed by Petitioners. Despite the voluminous submissions in this matter and the panoply of well-crafted legal arguments presented by counsel, this case boils down to a determination regarding the legal responsibility for ensuring Respondent YMAH complies with the State's compulsory education law and the legal process by which one may challenge Respondent YMAH's compliance. I. BACKGROUND
A. Applicable Law
1. New York State Constitution, Article XI, § 1
Article XI of the State Constitution encompasses education and is broken into four sections, the first of which is devoted to "Common schools." It provides that "[t]he 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" ( NY Const, art XI, § 1 ).
2. Education Law § 801
Article 17 of the Education Law encompasses mandated courses of instruction in various subject areas. Housed within Article 17, Education Law § 801, entitled "[c]ourses of instruction in patriotism and citizenship and in certain historic documents," is made up of five sub-sections, the first and third of which are most applicable to this proceeding provide, inter alia , as follows:
"1. The regents of The University of the State of New York shall prescribe courses of instruction in patriotism, citizenship, civic education and values, our shared history of diversity, the role of religious tolerance in this country, and human rights issues, with particular attention to the study of the inhumanity of genocide, slavery (including the freedom trail and underground railroad), the Holocaust, and the mass starvation in Ireland from 1845 to 1850, to be maintained and followed in all the schools of the state....
Similar courses of instruction shall be prescribed and maintained in private schools in the state, and all pupils in such schools over eight years of age shall attend upon such courses. If such courses are not so established and maintained in a private school, attendance upon instruction in such school shall not be deemed substantially equivalent to instruction given to pupils of like age in the public schools of the city or district in which such pupils reside.
3. The regents shall determine the subjects to be included in such courses of instruction ... and the period of instruction in each of the grades in such subjects.... The commissioner shall be responsible for the enforcement of such section and shall
cause to be inspected and supervise the instruction to be given in such subjects. The commissioner may, in his discretion, cause all or a portion of the public school money to be apportioned to a district or city to be withheld for failure of the school authorities of such district or city to provide instruction in such courses and to compel attendance upon such instruction, as herein prescribed, and for a non-compliance with the rules of the regents adopted as herein provided.
The commissioner shall be responsible for the enforcement of such section and shall cause to be inspected and supervise the instruction to be given in such subjects. The commissioner may, in his discretion, cause all or a portion of the public school money to be apportioned to a district or city to be withheld for failure of the school authorities of such district or city to provide instruction in such courses and to compel attendance upon such instruction, as herein prescribed, and for a non-compliance with the rules of the regents adopted as herein provided.
3. Education Law §§ 3201 — 3234
Article 65 of the Education Law, entitled "compulsory education and school census" is a comprehensive set of laws establishing minimum requirements for the provision of education across the State. The first of its two parts, entitled "compulsory education," includes thirty-four sections of law, from Education Law § 3201 ("[d]iscrimination on account of race, creed, color or national origin prohibited") through Education Law § 3234 ("[e]nforcement; withholding state moneys by commissioner of education"). Most applicable to this proceeding are the following sections:
" Education Law § 3204 .
1. Place of instruction. A minor required to attend upon instruction by the provisions of part one of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction.
2. (i) Instruction may be given only by a competent teacher. In the teaching of
the subjects of instruction prescribed by this section, English shall be the language of instruction, and text-books used shall be written in English.... Instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides."
(v) The commissioner shall be the entity that determines whether nonpublic elementary and secondary schools are in compliance with the academic requirements set forth in paragraphs (ii) and (iii) of this subdivision."
( Education Law § 3204 ).
" Education Law § 3234.
1. The commissioner of education shall supervise the enforcement of part one of this article and he may withhold one-half of all public school moneys from any city or district, which, in his judgment, willfully omits and refuses to enforce the provisions of part one of this article, after due notice, so often and so long as such willful omission and refusal shall, in his judgment, occur, or continue."
( Education Law § 3234 ).
4. Education Law § 310
Article 7 of the Education Law establishes, and delineates, the powers and responsibilities of the State Commissioner of Education. Within Article 7, Education Law § 310, entitled "Appeals or petitions to commissioner of education and other proceedings," provides that:
"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action:
1. By any school district meeting.
2. By any district superintendent and other officers, in forming or altering, or refusing to form or alter, any school district, or in refusing to apportion any school moneys to any such district or part of a district.
3. By a county treasurer or other distributing agent in refusing to pay any such moneys to any such district.
4. By the trustees of any district in paying or refusing to pay any teacher, or in refusing to admit any scholar gratuitously into any school or on any other matter upon which they may or do officially act.
5. By any trustees of any school library concerning such library, or the books therein, or the use of such books.
6. By any district meeting in relation to the library or any other matter pertaining to the affairs of the district.
6-a. By a principal, teacher, owner or other person in charge of any school in denying a child admission to, or continued attendance at, such school for
lack of proof of required immunizations in accordance with section twenty-one hundred sixty-four of the public health law.
7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools."
( Education Law § 310 ).
B. Factual and Procedural History
At the time of commencement, Petitioner Weber's son was an eight-year-old, third grade student at YMAH, which is in Kings County. Petitioner Weber contends that her child is receiving "very little if any secular education, and the little that he is receiving is from teachers who are not competent to teach secular studies." To address this concern, on September 18, 2019, when her son was a six year old student at YMAH, Petitioner Weber filed a petition with the State Respondents pursuant to Education Law § 310 and named as respondents in that proceeding both the Chancellor of the New York City Department of Education and YMAH [Petition, NYSCEF Doc. No. 1].
In the Education Law § 310 proceeding, Petitioner Weber alleged that she "moved to Brooklyn in 2015 and enrolled [A.B.] in YMAH's nursery school [id. ¶ 20], but that her son "is not receiving a secular education that is substantially equivalent to the education provided to students at public schools in Brooklyn" in violation of Education Law §§ 3204 and 801 [id. ¶ 6]. A.B. is Petitioner Weber's youngest of ten children, two others of whom also attended YMAH before A.B. [id. ¶ 20] and were also allegedly not afforded an education substantially equivalent to that afforded in public schools in Brooklyn, New York [id. ¶ 22]. Petitioner Weber asserted in the Education Law § 310 petition that A.B. would "not receive substantially equivalent secular instruction at YMAH absent intervention by the Chancellor (as ordered by the Commissioner)" [id. ¶ 27]. Based upon these concerns, Petitioner Weber admitted that she had previously "made arrangements for him to attend a different school," but following an objection by her ex-husband in Family Court, she "reached an agreement that [A.B.] would stay at YMAH" [id. ¶ 29].
Petitioner Weber requested "an order from the Commissioner directing the Chancellor [of the New York City Department of Education] to follow and enforce the New York State Education Law and guidelines and see to it that YMAH makes all necessary and appropriate measures to ensure that it is providing [A.B.] with substantially equivalent secular instruction" [id. ¶ 47].
While awaiting the Determination, on October 14, 2020, Petitioner Shapiro submitted a FOIL request through the City's "Open Records" portal [id. ¶ 72]. Petitioner Shapiro's request sought records related to a DOE investigation of Respondent YMAH allegedly commenced when Petitioner Weber filed her Education Law § 310 petition [id. ¶¶ 68 — 73]. On June 9, 2021, DOE denied Petitioner Shapiro's record request [id. ¶ 73]. Petitioner Shapiro appealed the denial on June 9, 2021 and DOE denied the appeal on June 24, 2021 [id. ].
One year and seven months following the filing of the Education Law § 310 petition, on April 21, 2021, Respondent Commissioner Rosa issued the Determination. Without reaching the merits, the Commissioner dismissed the petition upon two findings: 1. It was premature; and 2. The Commissioner lacked jurisdiction over Respondent YMAH [see generally , Determination, NYSCEF Doc. No. 3]. Regarding the first finding, the Determination explains:
"The Commissioner will not render an advisory opinion on an issue before it becomes justiciable.... Respondent NYCDOE indicates that it is currently investigating petitioner's allegations concerning the sufficiency of instruction at YMAH. The record further reflects that respondent NYCDOE had not, prior to the instant appeal, received any information suggesting that YMAH did not offer substantially equivalent instruction. Therefore, petitioner's request that respondent NYCDOE order YMAH to offer substantially equivalent instruction is premature. Should respondent NYCDOE make a final determination that YMAH offers substantially equivalent instruction, petitioner may appeal such determination under Education Law § 310"
[id. at 3]. In determining that the State lacked jurisdiction over Respondent YMAH, the Commissioner reasoned that an appeal pursuant to Education Law § 310 first required a determination by the City Respondents. To that end, the Determination explains:
"Although the Commissioner has exercised jurisdiction over entities other than public schools, such jurisdiction requires a specific, statutory grant of authority, which is absent here.... While the student is unquestionably entitled to instruction at least substantially equivalent to the instruction given to students served by respondent NYCDOE, the responsibility for determining whether YMAH's instruction meets that standard rests with respondent NYCDOE in the first instance. Accordingly, I find that Education Law § 310 does not confer authority on the Commissioner to review this matter, and the appeal must be dismissed with respect to YMAH for lack of jurisdiction...."
" Education Law § 3205 (2) provides that ‘[t]he commissioner [of education] shall be the entity that determines whether [a limited subset of] nonpublic elementary and secondary schools are in compliance with [certain] academic requirements.’ I agree with respondent NYCDOE that ‘there is no evidence in the record and it is unclear whether YMAH satisfies any of the [statutory] criteria’ for a Commissioner's determination under this section."
[id. at 3 — 4]. The Determination concludes with an assertion that despite the dismissal upon procedural grounds, "petitioner's allegations regarding the nature and quality of instruction at YMAH are highly concerning. I encourage respondent NYCDOE to complete its investigation as expeditiously as possible" [id. at 4].
On June 25, 2021, just over two months following the Determination's issuance, Petitioners commenced this proceeding [Petition, NYSCEF Doc. No. 3]. Despite the summary nature of CPLR article 78, Petitioners commenced motion practice that same day, pursuing leave to take discovery [NYSCEF Doc. No. 45]. Then, on August 5, 2021, Petitioners moved by show cause order to pursue notices to admit [NYSCEF Doc. No. 57]. On August 9, 2021, Supreme Court (Platkin, J.) signed the proposed order but made it returnable on the same date and time as the Petition and issued a letter order "doubt[ing] that the Notices to Admit are a proper vehicle to compel the requested admissions" [NYSCEF Doc. Nos. 64 - 65].
The State Respondents and Respondent YMAH both filed motions to dismiss on August 20, 2021 [NYSCEF Doc. Nos. 67 — 71 and 72 — 96] and the City Respondents filed a Demand for Venue Change to move Petitioner Shapiro's FOIL challenge to Supreme Court, New York County [NYSCEF Doc. No. 98].
On September 3, 2021, Petitioners filed a proposed Order to Show Cause based upon Respondent YMAH's alleged failure to respond to Notices to Admit [NYSCEF Doc. Nos. 129 — 130], and on September 9, 2021, Supreme Court (Lynch, J.), by notice, refused to sign the proposed Order [NYSCEF Doc. Nos. 135 — 136]. On September 7, 2021, the City Respondents followed their previously filed demand to change venue by filing a formal Motion to Sever/Transfer the FOIL portion of the Petition [NYSCEF Doc. No. 132 — 134].
Continuing to seek discovery, on November 21, 2021, Petitioners filed another proposed order to show cause, this time seeking an order directing production of an alleged evaluation conducted by DOE of Respondent YMAH and sent to the State Respondents [NYSCEF Doc. Nos. 144 — 148]. The parties, including Petitioners, submitted correspondence to the Court weighing-in on the not-yet-signed proposed order [NYSCEF Doc. Nos. 149 — 152]. This Court signed the Order, and made it, along with all other pending motions, returnable on January 28, 2022, and scheduled counsel to appear on that date for oral arguments [NYSCEF Doc. No. 153]. Upon request from the State Respondents, the Court adjourned the return date and oral arguments from January 28, 2022 to February 18, 2022 [NYSCEF Doc. No. 157]. Following oral arguments, the Court met virtually with counsel on March 15, 2022 and March 28, 2022 in furtherance of a potential agreed-upon resolution.
The post argument conferences were productive but did not result in an agreement. On April 7, 2022, counsel for the State Respondents confirmed by letter to the Court that "YMAH falls within the ambit of the Felder Amendment ( Education Law § 3204 [2] [ii] — [iv] ). As such, the Commissioner is the final decisionmaker as to the substantial equivalency of YMAH." [NYSCEF Doc. No. 169]. The State Respondents also confirmed that they are "willing to commit to providing ... a determination within 90 days of receiving complete information and a recommendation from [NYC] DOE" [id. ]. II. DISCUSSION
A. Discovery is not Appropriate in this Summary Proceeding.
Petitioners move by multiple motions to compel discovery, including notices to admit and the production of correspondence from the City Respondents to the State Respondents issued long after the Determination was published. All Respondents oppose the motions. Each motion is denied because none of the information sought by Petitioners is either material or necessary for the disposition of this special proceeding.
"Consistent with the summary nature of a special proceeding, CPLR 408 generally disallows pretrial disclosure without leave of court" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 408 at 405 ; see Matter of Beatrice R.H. [Dean E.H. –Penny F.H.] , 131 A.D.3d 1059, 1059-1060, 16 N.Y.S.3d 475 [2d Dept. 2015], lv dismissed 26 N.Y.3d 1077, 23 N.Y.S.3d 153, 44 N.E.3d 229 [2015]. ). This Court has broad discretion when considering a request for disclosure in a special proceeding (see Matter of Suit-Kote Corp. v. Rivera , 137 A.D.3d 1361, 1364-1365, 26 N.Y.S.3d 642 [3d Dept. 2016], lv dismissed and denied 27 N.Y.3d 1054, 33 N.Y.S.3d 874, 53 N.E.3d 754 [2016] ; Matter of Held v. State of N.Y. Workers’ Compensation Bd. , 103 A.D.3d 1063, 1064, 960 N.Y.S.2d 542 [3d Dept. 2013] ). Courts are to consider whether it has been established by the party seeking disclosure "that the requested information is material and necessary" ( Matter of Suit-Kote Corp. v. Rivera , 137 A.D.3d at 1365, 26 N.Y.S.3d 642 ; see Matter of Town of Wallkill v. New York State Bd. of Real Prop. Servs. , 274 A.D.2d 856, 859, 711 N.Y.S.2d 228 [3d Dept. 2000], lv denied 95 N.Y.2d 770, 722 N.Y.S.2d 473, 745 N.E.2d 393 [2000] ), whether the request is sufficiently tailored to obtain necessary information (see Matter of Suit-Kote Corp. v. Rivera , 137 A.D.3d at 1365, 26 N.Y.S.3d 642 ; Matter of Georgetown Unsold Shares, LLC v. Ledet , 130 A.D.3d 99, 106, 12 N.Y.S.3d 160 [2d Dept. 2015] ) and "whether undue delay will result from the request" ( Matter of Suit-Kote Corp. v. Rivera , 137 A.D.3d at 1365, 26 N.Y.S.3d 642 ; Matter of Bramble v. New York City Dept. of Educ. , 125 A.D.3d 856, 857, 4 N.Y.S.3d 238 [2d Dept. 2015] ).
Petitioners’ request for discovery is based upon a misapprehension that this Court will inappropriately venture beyond a review of the Determination's legality to issue its own findings on the merits in substitution of the Commissioner's expertise and specific, legislatively delegated, authority. As discussed more fully below, that is not the case and the pursuit of records and answers which were not considered during the challenged administrative proceeding would be both inappropriate and of no value to this limited proceeding. Taken together with this Court's appreciation that discovery is not generally appropriate in special proceedings, Petitioner has failed to establish a "demonstrated need" for the further discovery and, to the extent such is sought, it is hereby denied (see National Energy Marketers Assn. v. New York State Pub. Serv. Commn. , 57 Misc. 3d 282, 296-297, 60 N.Y.S.3d 760 [Sup. Ct., Albany County 2017, Zwack, J.], affd 167 A.D.3d 88, 88 N.Y.S.3d 259 [3d Dept. 2018] ).
B. New York County is the Appropriate Venue for Attorney Shapiro's Challenge.
The City Respondents move to sever and transfer venue of Petitioner Shapiro's FOIL appeal from Supreme Court, Albany County to Supreme Court, New York County, pursuant to CPLR 506 and because "it shares no common questions with Petitioner Weber's substantive claims," and will prejudice the City Respondents and their employees. Petitioners oppose the motion, largely restating their arguments in support of the Article 78 proceeding and contending that the documents sought by Petitioner Weber are "directly related to each other," because "DOE asserts that Ms. Weber's proceeding should be dismissed because it is still ‘investigating’ YMAH, and Petitioner Shapiro asserts that, under FOIL, he has a right to see certain documents related to that very ‘investigation’ " [NYSCEF Doc. No. 117]. "Documents related to the DOE's ‘investigation’ (which it vigorously asserts is its primary affirmative defense), however, will demonstrate to the Court the necessity of a writ of mandamus to compel" [NYSCEF Doc. No. 119 at 51]. Petitioners also argue that the City Respondents and their employees will not be inconvenienced if venue remains in Albany County "given the availability of trials via Zoom or otherwise should it be necessary" [id. ].
CPLR 603 has no statutory provisions that need to be established to grant a motion to sever and "[a]ny instance of sound exercise of judicial discretion" will suffice for a granting of a [CPLR] 603 Motion to Sever" (David D. Siegel & Patrick M. Connors, New York Practice § 129 at 261 [6th ed 2018]; see also Finning v. Niagara Mohawk Power Corp. , 281 A.D.2d 844, 844, 722 N.Y.S.2d 613 [3d Dept. 2001] ). "Severance is inappropriate where the claims against the [respondents] involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial" ( M.V.B. Collision, Inc. v. Allstate Ins. Co. , 187 A.D.3d 883, 884, 130 N.Y.S.3d 719 [2d Dept. 2020] ). "Where complex issues are intertwined, albeit in technically different actions, it would be better not to fragment trials, but to facilitate one complete and comprehensive hearing and determine all the issues involved between the parties at the same time" ( Shanley v. Callanan Indus. , 54 N.Y.2d 52, 57, 444 N.Y.S.2d 585, 429 N.E.2d 104 [1981] ).
The Court agrees with Petitioners that the potential alleged inconvenience to the City Respondents and its employees is insufficient to warrant severance and a transfer of venue, particularly considering this Court's willingness to entertain virtual appearances. The same cannot be said regarding the primary argument regarding whether Albany County is an appropriate venue in the first instance. As the City Respondents correctly point out, CPLR 506 requires an action to be commenced "within the judicial district where the respondent made the determination complained of." There is no question that Respondent DOE's principal place of business is in New York County, "and the majority of its central office employees, including those in the Privacy Records Access Unit — the division that processed the FOIL request — work in New York County" [NYSCEF Doc. No. 133 at 3]. Petitioner Shapiro's attempt to sidestep this glaring flaw by arguing the records sought are directly related to Petitioner Weber's Article 78 is unpersuasive in light of the Court's earlier determination regarding Petitioners’ request for discovery (i.e., this case challenges the Determination which dismissed the underlying petition upon procedural grounds). To the extent Petitioners assert the requested records will support Petitioners’ request for mandamus to compel because they will show the investigation is still incomplete, that fact has already been conclusively established and cannot reasonably be said to be in question. Indeed, as recently as April 7, 2022, counsel for the State Respondents confirmed that it is still awaiting the results of the City Respondents’ investigation [NYSCEF Doc. No. 169].
Absent an acceptable justification to connect the FOIL challenge to the challenge of the Determination, this Court finds it inappropriate to effectively transfer venue of a proceeding that would otherwise only be appropriately venued in New York County. Further, Petitioners have shown no prejudice caused by the FOIL challenge being severed. Accordingly, the City Respondents’ motion to sever and transfer venue of Petitioner Shapiro's FOIL challenge is granted (see generally Matter of Green Harbour Homeowners’ Assn. v. Town of Lake George Planning Bd. , 1 A.D.3d 744, 746, 766 N.Y.S.2d 739 [3d Dept. 2003] ).
C. Motions to Dismiss
The State Respondents and Respondent YMAH now move to dismiss the Petition by pre-answer motions largely promoting the same arguments. These motions assert dismissal is appropriate because Petitioners’ challenge of the Determination is premature, Petitioner Weber fails to state a cause of action for mandamus to compel, Petitioners lack standing to challenge the Determination, and Petitioners are not entitled to declaratory relief. In addition to these shared arguments in support of their motions, the State Respondents contend this Court lacks subject matter jurisdiction and Respondent YMAH contends that it is not a proper party.
1. Each Petitioner has Standing.
"Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria" ( Matter of Curry v. N.Y. State Educ. Dept. , 163 A.D.3d 1327, 1329 [3d Dept. 2018], quoting Society of Plastics Indus., Inc. v. County of Suffolk , 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ; see Matter of La Barbera v. Town of Woodstock , 29 A.D.3d 1054, 1055, 814 N.Y.S.2d 376 [3d Dept. 2006], lv dismissed 7 N.Y.3d 844, 823 N.Y.S.2d 773, 857 N.E.2d 68 [2006] ). To establish standing, a petitioner must demonstrate that he or she has suffered a specific injury-in-fact and that the injury falls within the zone of interests protected by the statute (see Society of Plastics Indus. v. County of Suffolk , 77 N.Y.2d at 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ). The State Respondents argue that Petitioner Weber lacks standing to sue either on her own behalf or on behalf of her son A.B because she failed to allege any facts demonstrating her own injury (see Matter of East Ramapo Cent. Sch. Dist. v. King , 29 N.Y.3d 938, 939, 51 N.Y.S.3d 2, 73 N.E.3d 342 [2017], citing Matter of Dairylea Coop. v. Walkley , 38 N.Y.2d 6, 11, 377 N.Y.S.2d 451, 339 N.E.2d 865 [1975] ), and she failed to show decision-making authority with respect to A.B.’s education (see Rech v. Alden Cent. Sch. Dist. , 2016 WL 5719433, *5, 2016 US Dist LEXIS 137000, *15 [WD NY, Oct. 3, 2016, No. 16-cv-6207 (CJS)] [finding that, under New York law, the plaintiff did not have standing to sue regarding his child's educational needs because the plaintiff's ex-wife, not the plaintiff, had "final say on all educational decisions" for their child]; see also Fuentes v. Board of Educ. of City of N.Y., 12 N.Y.3d 309, 313, 879 N.Y.S.2d 818, 907 N.E.2d 696 [2009] [declining to recognize an implied right of decision-making authority for a child's education where such implied right would be contrary to the provisions of a divorce decree or custody order]). Respondent YMAH also pursues dismissal because of an asserted lack of standing, however, argues it is A.B. and Petitioner Shapiro who lack standing because neither was a party to the Education Law § 310 proceeding below and so, the agency determination is not final and binding upon them (see Matter of Ranco Sand & Stone Corp. v. Vecchio , 27 N.Y.3d 92, 98, 29 N.Y.S.3d 873, 49 N.E.3d 1165 [2016] [to "challenge an administrative determination, the agency action must be final and binding upon the petitioner"]; see also Matter of New York State Assn. of Tobacco & Candy Distribs. v. New York State Tax Appeals Trib. , 159 A.D.2d 132, 133, 559 N.Y.S.2d 592 [3d Dept. 1990] [finding no standing "to seek CPLR article 78 review of a final determination of respondent State Tax Appeals Tribunal rendered in an administrative proceeding to which petitioner was not a party"]).
Beginning with Petitioner Weber's authority to represent her son's interests in this proceeding, a review of the papers submitted confirms that Petitioner Weber's divorce resulted in her obtaining "full legal custody of the four youngest children namely ... [A.B.]" (Bleier v Bleier , Sup Ct, Rockland County, May 20, 2016, Loehr, J., index No. 034089/15 [NYSCEF Doc. No. 127 at 2]). As such, Petitioner Weber has capacity to bring this proceeding on behalf of her son. With respect to Petitioner Weber's standing to bring this lawsuit on behalf of herself, the law is clear that "[a] parent, merely by virtue of [her] status as such, enjoys no general power of supervision over school officials, but must demonstrate some continuing or threatened injury to the interests of his [or her] child in particular" ( Matter of Muka v. Cornell , 48 A.D.2d 944, 945, 368 N.Y.S.2d 874 [3d Dept. 1975] ; citing Matter of Shanks v. Donovan , 32 A.D.2d 1037, 1038, 303 N.Y.S.2d 783 [2d Dept. 1969] ). The Court finds Petitioner Weber, on behalf of herself and her son A.B., has alleged harm sufficient to confer standing (see Matter of Curry v. N.Y. State Educ. Dept. , 163 A.D.3d 1327, 1329, 82 N.Y.S.3d 632 [3d Dept. 2018]) (determining standing existed because petitioners, parents of school children, "sufficiently alleged a threatened harm to the children's constitutional right to receive a sound basic education based upon respondents’ alleged failure to take corrective action"). With respect to Respondent YMAH's argument that Petitioner Shapiro lacks standing since he was not a party to the Education Law § 310 proceeding, the Court would have to ignore Petitioner Shapiro's allegations regarding access to records in order to find in Respondent YMAH's favor. Indeed, that argument disregards Petitioner Shapiro's pursuit of records that he himself requested from the City Respondents. Petitioner Shapiro's standing is based upon his own FOIL challenge and not a challenge of the Education Law § 310 determination. Accordingly, while rendered academic
by this Decision and Order's severance of the FOIL challenge, Petitioner Shapiro does have standing.
2. This Court Has Subject Matter Jurisdiction.
The State Respondents next argue for dismissal based upon this Court's alleged lack of subject matter jurisdiction "to the extent Petitioner Weber challenges her divorce settlement or alleges violations of the Education Law by" Respondent YMAH, a nonpublic entity. In support of this argument, the State Respondents cite Education Law § 3232 (1) ("In ... the city of New York family courts shall have exclusive original jurisdiction in [ ] proceedings [to hear, try and determine charges of violation of the provisions of part one of this article"]), and a litany of decisions affirming that neglect proceedings brought against parents or guardians of children must be commenced in the State's Family Courts (see e.g. People v. Donner , 199 Misc. 643, 644, 99 N.Y.S.2d 830 [Dom Rel Ct, Kings County 1950, Delany, J.] [" Section 3227 (3232) of the Education Law expressly confers upon this court exclusive jurisdiction to entertain a prosecution for violation of section 3212 of the Education Law"], affd 278 A.D. 705, 103 N.Y.S.2d 757 [2d Dept. 1951], affd 302 N.Y. 857, 100 N.E.2d 48 [1951], lv dismissed 342 U.S. 884, 72 S.Ct. 178, 96 L.Ed. 663 [1951] ; see also Matter of Paolella v. Phillips , 27 Misc. 2d 763, 766-767, 209 N.Y.S.2d 165 [Sup. Ct., Suffolk County 1960, Meyer, J.] [reviewing cases and acknowledging that where a father with decision-making authority as to his child's education chose to enroll that child in a Jewish parochial school that "did not conform to minimum curriculum requirements set by the State, the father was acting in violation of the Education Law"]).
In the State of New York, "the Supreme Court is a court of original, unlimited, and unqualified jurisdiction" ( Kagen v. Kagen , 21 N.Y.2d 532, 537, 289 N.Y.S.2d 195, 236 N.E.2d 475[1968] [citations omitted]; see generally NY Const, art VI, § 7 ). "The [Family Court] is a court of limited jurisdiction and it does not have jurisdiction where an administrative procedure is available and the claim, in essence, ‘would require review of an administrative agency's determination’ " ( Chevron U.S.A. Inc. v. State , 86 A.D.3d 820, 820, 926 N.Y.S.2d 923 [3d Dept. 2011], quoting City of New York v. State of New York , 46 A.D.3d 1168, 1169, 847 N.Y.S.2d 768 [3d Dept. 2007], lv denied 10 N.Y.2d 705, 857 N.Y.S.2d 37, 886 N.E.2d 802 [2008]; see Carver v. State of New York , 79 A.D.3d 1393, 1394, 913 N.Y.S.2d 395 [3d Dept. 2010] ; Buonanotte v. New York State Off. of Alcoholism & Substance Abuse Servs., 60 A.D.3d 1142, 1143, 875 N.Y.S.2d 301 [3d Dept. 2009], lv denied 12 N.Y.3d 712, 2009 WL 1586923 [2009] ; Guy v. State of New York , 18 A.D.3d 936, 937, 794 N.Y.S.2d 503 [3d Dept. 2005] ). While the State Respondents accurately cite the compulsory education law for the proposition that the Family Court has exclusive jurisdiction to hear claims prosecuted in furtherance of it, this Court is neither persuaded that the legislative grant of such limited exclusive jurisdiction was meant to extend beyond the pursuit of neglect proceedings, nor that Petitioners here are in fact pursuing a neglect proceeding against Petitioner Weber herself. While apparently novel as none of the parties cited, nor could this Court find, any remotely similar cases in which a parent challenged either the State's or the City's alleged failure to enforce the compulsory education law against a school at which her own child attends, that is precisely the issue underlying the proceeding before this Court. It is Petitioners’ desire to require the government — both the State and the City — to enforce the law and thereby ensure A.B. receives a proper education. While the parties arrive at this Court because of a disagreement regarding the propriety of the Commissioner's determination below, none contest that the Determination was issued pursuant to an administrative process employed by the SED to manage petitions and appeals brought pursuant to Education Law § 310.
If Petitioners’ contentions are accurate, the school at which Petitioner Weber agreed to, and continues to, send her child may not be in compliance with the law. Pursuant to the Education Law, that finding could thereafter result in a neglect proceeding which would only be appropriately commenced in Family Court. But here, far from a neglect proceeding, Petitioners seek judicial review of the Determination pursuant to CPLR article 78 in the nature of mandamus to compel and/or review. As such, this Court, the Supreme Court, has subject matter jurisdiction to hear the claims (see CPLR 7804 [b] ["Where proceeding brought. A proceeding under this article shall be brought in the supreme court"]).
3. This Proceeding was not Commenced Prematurely.
"To challenge an administrative determination [under Article 78], the agency action must be final and binding upon the petitioner" ( Matter of Ranco Sand & Stone Corp. v. Vecchio , 27 N.Y.3d 92, 98, 29 N.Y.S.3d 873, 49 N.E.3d 1165 [2016] [internal citation and quotation marks omitted]). "[W]hether the agency action is ripe for review depends upon several considerations" ( Matter of Gordon v. Rush , 100 N.Y.2d 236, 242, 762 N.Y.S.2d 18, 792 N.E.2d 168 [2003] ). An Agency's determination is ripe for review if (i) it " ‘den[ied] a right ... as a consummation of the administrative process;’ " (ii) the " ‘decisionmaker ... arrived at a definitive position on the issue that inflicts an actual, concrete injury;’ " and (iii) the inflicted harm cannot be " ‘prevented or significantly ameliorated’ " by additional actions by either the agency or the petitioner ( id. , quoting Matter of Essex County v. Zagata , 91 N.Y.2d 447, 453, 672 N.Y.S.2d 281, 695 N.E.2d 232 [1998] ). "There should be no confusion about the requirement that administrative remedies must be exhausted in some cases before judicial review is available and the requirement that an action must be final before it is ripe for judicial review. The finality requirement is concerned with whether an official authorized to make the determination has arrived at a decision that inflicts injury. The requirement that administrative review must be exhausted in some cases relates to the procedure by which a party injured by a decision may seek review and obtain a remedy if the decision is found to be unlawful" ( Town of Orangetown v. Magee , 88 N.Y.2d 41, 51, 643 N.Y.S.2d 21, 665 N.E.2d 1061 [1996] ). "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury" ( Watergate II Apts. v. Buffalo Sewer Auth. , 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ).
The State Respondents and Respondent YMAH both argue Petitioners’ Education Law § 310 petition and the current proceeding were commenced prematurely because the Determination is not final and so this proceeding was commenced prior to an exhaustion of available administrative remedies. The moving Respondents contend the Commissioner merely provided an advisory position which required additional information (i.e. , a first level determination by the City Respondents), before a final decision can be issued on the merits. Similarly, with respect to prematurity, the moving Respondents contend that at the time the Education Law § 310 proceeding was commenced, the City Respondents had never been notified by Petitioners that Respondent YMAH was allegedly in violation of the Education Law and accordingly had not completed, let alone begun, the necessary first step of reviewing the complaint and rendering a determination regarding substantial compliance. Both arguments rely upon the legal premise that Petitioners were required first to seek redress from a local school authority, the City Respondents, before seeking redress from the Commissioner pursuant to Education Law § 310.
In support of this position, Respondents cite the Education Law, administrative decisions, and non-binding caselaw from Federal Districts and a State Family Court. Reference is made to Education Law § 3210 (2) (a student who attends "elsewhere than at a public school ... shall attend for at least as many hours, and within the hours specified therefor," but "may be permitted to attend for a shorter school day or for a shorter school year or for both, provided that, in accordance with SED regulations, the instruction he [or she] receives has been approved by the school authorities as being substantially equivalent in amount and quality to that required by the provisions of [the compulsory education law])," and Education Law § 2 (12), which explains that "school authorities," as the term is used in Education Law § 3210 (2), is defined as the board of education or corresponding officer of a school district. Respondents also focus on the local nature of the determination and refer to Education Law § 3204 (2) (i), which provides that any determination regarding substantial compliance must be determined relative to instruction "given to the children of like age at the public school of the city or district in which such child resides." The State Respondents reference caselaw supporting the proposition that it is the responsibility of local school authorities to determine whether a nonpublic school provides instruction that is "at least substantially equivalent" ( Young Advocates for Fair Educ. v. Cuomo , 359 F. Supp. 3d 215, 220 [E.D.N.Y. 2019] ) ["It is generally up to the local school board, through the district superintendent, to determine whether its students are receiving a ‘substantially equivalent’ education"], citing Blackwelder v. Safnauer , 689 F. Supp. 106, 122 [N.D.N.Y. 1988] ; Matter of Adam D. , 132 Misc. 2d 797, 801, 505 N.Y.S.2d 809 [Fam. Ct., Schoharie County 1986, Lamont, J.] ; Appeal of M. L. B. , 34 Ed Dept Rep [Decision No. 13225]); Appeal of N. and A.A. , 33 Ed Dept Rep [Decision No. 13118]). Respondent YMAH also cites the Blackwelder determination, along with several Commissioner determinations similarly dismissing Education Law § 310 proceedings for being prematurely filed, and matter-of-factly states "[t]he Commissioner has delegated primary responsibility for assessing substantial equivalency to local school boards." No citation is provided for this alleged delegation of authority. While they did not move to dismiss the Petition, the City Respondents take the same position in their Answer, also citing the Blackwelder and Matter of Adam D. determinations for the proposition that "local boards of education have the initial responsibility of determining whether an alternative educational program, including a homeschooling program, provides instruction substantially equivalent to that provided in the public schools in their own districts." The City Respondents also cite the 2001 SED Guidance as requiring local school authorities to make the initial determination regarding substantial compliance.
In opposition to Respondents’ arguments, Petitioners contend the proceeding is not premature because the Determination erroneously dismissed the Education Law § 310 petition based upon the legal position that it was prematurely filed, and neither the Education Law § 310 petition nor the instant proceeding are premature because there is no requirement in law that requires a determination by a local school authority regarding substantial compliance before the Commissioner can issue a determination. In support of the position that the Determination was final, Petitioners assert "the Commissioner did not stay the action pending further information from the DOE or YMAH," and "[s]he did not order more evidence or a rehearing. She dismissed. Dismissal is as final as one can get in New York law." Finally, Petitioners counter Respondents’ argument that the local school authority must first issue a substantial compliance determination by arguing "there is nothing in the Education Law or any regulation or even the Guidelines themselves which says that a parent cannot get educational relief from the SED until a complaint has been filed with the local school authority and that agency has completed its investigation. Nothing. There are no regulations interpreting and applying the New York Education Law that stand for the proposition that the SED cannot do its job of enforcing New York's Education Law until a local school authority has completed an investigation." The Court agrees with Petitioners. The uniform, and matter of fact, position adopted by all Respondents that the Determination was not final and thus this proceeding was commenced prematurely presents a persuasive position, however, this Court believes the finality of the Determination's erroneous legal position demands judicial intervention now lest Petitioners be subjected to a potentially endless waiting period. Indeed, had the Determination been issued as an interim measure to confirm for Petitioners that despite the passage of a significant amount of time, a final determination was still pending because the underlying investigation was still incomplete, this Court would agree that the proceeding was filed prematurely. If that were the case, this Court would accept that the City Respondents’ investigation was simply an interim step within the State Respondents’ process of determining Petitioner Weber's Education Law § 310 petition. The Determination did not take that position. As Petitioners’ argue, the Commissioner adopted final positions as a matter of law and erroneously dismissed the proceeding upon a conclusion that Petitioner Weber was legally required to first seek redress from the City Respondents before proceeding pursuant to Education Law § 310 to the Commissioner. The fact that the Determination signaled the importance of the issue and the hope that the City Respondents would complete an investigation is neither binding nor persuasive to this Court. Despite that hopeful language, there is nothing in the Determination that requires the City Respondents to complete an investigation which, according to all Respondents, is a believed condition precedent to a determination on the merits by the Commissioner. While entirely logical and the most prudent and efficient manner for a complainant to seek a timely determination on the merits, the law simply does not require that first step because the State has not implemented regulations to that effect.
Petitioners also argue the City Respondents were notified of this issue in 2015 and submit to this Court a letter directed to seven New York City school superintendents and written by "parents of current students, former students and former teachers at the yeshivas on the attached list." The letter certainly raises the same issues brought by Petitioners, however, conspicuously and fatally missing from the submission is the letter's attachment which listed the alleged problem schools. Accordingly, the letter does not evidence the City's alleged prior notice of alleged Education Law compliance issues at YMAH.
This Court is well aware that it must "ordinarily defer[ ] to an agency's construction of the legislation it is charged with implementing; however, it is well-established that [it] must do so only when such interpretation is not irrational, unreasonable or inconsistent with the statutory scheme" ( Matter of Adirondack Wild: Friends of The Forest Preserve v. N.Y. State Adirondack Park Agency , 161 A.D.3d 169, 181, 75 N.Y.S.3d 681 [3d Dept. 2018] [internal quotation marks omitted], affd 161 A.D.3d 169, 75 N.Y.S.3d 681 [2019], citing Matter of Rochester City School Dist. v. New York State Educ. Dept. , 31 A.D.3d 993, 995, 819 N.Y.S.2d 190 [3d Dept. 2006], lv denied 8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112 [2007] ; see Matter of 172 E. 122 St. Tenants Assn. v. Schwarz , 73 N.Y.2d 340, 348, 540 N.Y.S.2d 420, 537 N.E.2d 1281 [1989] ; Matter of Drew v. Schenectady County , 212 A.D.2d 177, 179, 629 N.Y.S.2d 532 [3d Dept. 1995], affd 88 N.Y.2d 242, 644 N.Y.S.2d 471, 666 N.E.2d 1344 [1996] ). Despite Respondents’ uniform position, nothing contained with the Education Law or regulation, at this time, requires that a complaining individual must first proceed to a local school authority before seeking assistance from State Respondents. Critically, while Education Law § 3210 (2) does provide the following text supporting the position that local school authorities may be imbued with this authority, "the instruction he [or she] receives has been approved by the school authorities as being substantially equivalent," that language is preceded by the following text: "in accordance with SED regulations" ( Education Law § 3210 [2] ). As DOE's former Commissioner aptly summarized in a 2019 letter to SED's Interim Commissioner, "[i]n April 2018, Education Law § 3204 (2) was amended to provide that the Commissioner, not the local school district, would determine whether certain nonpublic schools are providing substantially equivalent instruction, and to add to the substantive criteria by which those schools would be evaluated. Then ... in November 2018, [SED] revised its long-standing Guidelines for Determining Equivalency of Instruction in Nonpublic Schools.... Then in April 2019, the new guidance was struck down by the Supreme Court, Albany County" [NYSCEF Doc. No. 15 at 1]. Since being struck down, SED has proposed, but has not finalized, new regulations and instead relies here upon its own published guidance. Unlike regulations, those agency guidelines are not binding and are insufficient to impart the mandatory condition precedent relied upon by Respondents (i.e. , a first level review by DOE) that is not otherwise contained within the Education Law (see Matter of Adirondack Wild: Friends of The Forest Preserve v. N.Y. State Adirondack Park Agency , 161 A.D.3d at 177-178, 75 N.Y.S.3d 681 ["An administrative agency's internal guidelines are not binding rules or regulations because they do not impose fixed, general principle(s) to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers"]; Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health , 66 N.Y.2d 948, 951, 498 N.Y.S.2d 780, 489 N.E.2d 749 [1985] [1985]; Matter of City of New York v. New York State Pub. Serv. Commn. , 105 A.D.3d 1200, 1204, 963 N.Y.S.2d 447 [3d Dept. 2013] ). Accordingly, the Court finds the Determination was not commenced prematurely and the Determination was reached in error of law. 4. The Extraordinary Relief of Mandamus to Compel is Appropriate.
The Court is mindful that an opportunity to submit an Answer has not been afforded before reaching the merits, however "[h]ere, respondents fully apprised [the] Court of all relevant arguments in connection with the petition making it unnecessary to grant leave to serve an answer" (Matter of Giorgio v. Bucci, 246 A.D.2d 711, 713, 667 N.Y.S.2d 484 [3d Dept. 1998], lv denied 91 N.Y.2d 814, 676 N.Y.S.2d 127, 698 N.E.2d 956 [1998], citing Matter of Davila v. New York City Hous. Auth. , 190 A.D.2d 511, 512, 593 N.Y.S.2d 12 [1st Dept. 1993], lv denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160[1995] ).
A mandamus proceeding brought pursuant to Article 78 may seek to compel an agency "to perform a duty enjoined upon it by law" ( CPLR 7803 [1] ), however, it is "an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought" ( Matter of Shaw v. King , 123 A.D.3d 1317, 1318-1319, 999 N.Y.S.2d 253 [3d Dept. 2014] [internal quotation marks and citation omitted]). Indeed, "the long-established law is that [while] a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion" ( Klostermann v. Cuomo , 61 N.Y.2d 525, 539, 475 N.Y.S.2d 247, 463 N.E.2d 588 [1984] [internal quotation marks and citation omitted]). More succinctly, "[m]andamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment" ( Alliance to End Chickens as Kaporos v. New York City Police Dept. , 152 A.D.3d 113, 117, 55 N.Y.S.3d 31 [1st Dept. 2017], affd 32 N.Y.3d 1091, 90 N.Y.S.3d 617, 114 N.E.3d 1070 [2018], cert denied ––– U.S. ––––, 139 S. Ct. 2651, 204 L.Ed.2d 285 [2019] ).
By this proceeding, Petitioners seek various forms of alternate affirmative relief, including orders annulling the Determination and directing YMAH to teach certain subjects, directing the NYC Respondents to require YMAH to teach certain subject, and directing the State Respondents to require the City Respondents to force YMAH to teach certain subjects [NYSCEF Doc. No. 1 at 27 - 28]. There can be no question that any requested relief that would have this Court step into Respondents’ shoes, review the record below and consider new information, and then issue determinations in place of the State and City Respondents would ignore decades of precedent directing otherwise. This Court will not entertain such a request. That does not mean some form of compulsion is not otherwise available and appropriate in this case.
While the Courts of this State have consistently held that they will not supplant the expertise of an agency in its non-ministerial decision-making role, they have just as consistently held that administrative agencies may be compelled to act when they have abdicated their responsibilities (see e.g. Matter of Williamsville Clare Bridge Operator, Inc. v. Novello, 6 A.D.3d 861, 863, 775 N.Y.S.2d 382 [3d Dept. 2004] [the extraordinary remedy of mandamus may be properly invoked to compel an agency to render a determination]; Matter of Fixler v. Karrell , 170 A.D.2d 814, 816, 565 N.Y.S.2d 913 [3d Dept. 1991] [Holding that, though an agency may have discretion in its ultimate determination, an agency may still be compelled to either grant or deny request]). The failure to act, or decision not to act, however characterized, has the same detrimental effect upon those who rely upon a government agency that is duty-bound to perform an administrative function on behalf of the people it serves. It is this limited circumstance that opens the door to a court order mandating action in cases involving non-ministerial duties (see Matter of Flosar Realty LLC v. New York City Hous. Auth. , 127 A.D.3d 147, 154, 5 N.Y.S.3d 382 [1st Dept. 2015], citing Klostermann v. Cuomo , 61 N.Y.2d at 541, 475 N.Y.S.2d 247, 463 N.E.2d 588 ["to the extent that plaintiffs can establish that defendants are not satisfying nondiscretionary obligations to perform certain functions, they are entitled to orders directing defendants to discharge those duties"]; Matter of Utica Cheese, Inc. v. Barber , 49 N.Y.2d 1028, 1030, 429 N.Y.S.2d 405, 406 N.E.2d 1342 [1980] [although statute did not define the "reasonable time" within which agency had to render its decision on the petitioner's license application, agency still had to act]; Matter of Davidson v. LaGrange Fire Dist. , 82 A.D.3d 1227, 1229, 920 N.Y.S.2d 169 [2d Dept. 2011] [where an agency fails or refuses to decide a particular matter where there was a nondiscretionary duty to do so, mandamus is appropriate to compel performance of the required duty]).
In reviewing whether an order compelling the State Respondents or the City Respondents to act pursuant to the State Education Law, the Court would ordinarily begin by determining whether either party is required by law to act. The State Respondents already answered that question by letter to the Court dated April 7, 2022. Indeed, the State Respondents have confirmed that "YMAH falls within the ambit of the Felder Amendment ( Education Law § 3204 [2] [ii] — [iv] ). As such, the Commissioner is the final decisionmaker as the substantial equivalency of YMAH" [NYSCEF Doc. No. 169]. Accordingly, the Court need only determine whether the State Respondents have failed to satisfy their nondiscretionary obligations under the State Education Law. Even if the Court accepts that the State and City Respondents had no notice of Petitioners’ claims prior to the September 18, 2019 filing of the Education Law § 310 proceeding, it has now been nearly three years since that proceeding was commenced. Regardless of delays caused by the Covid-19 pandemic and the investigative process utilized by the City Respondents, it is the State Respondents’ legal responsibility to ensure compliance with the compulsory education law. While there are no other cases explaining what a reasonable amount of time for such an investigation may be, this Court finds it unreasonable to still not have a determination on the merits, let alone a completed investigation regarding allegations made in September of 2019 when it is now June of 2022. Despite assurances to the contrary, the failure to complete the investigation and/or issue a determination on the merits after the passage of so much time leads this Court to determine an order compelling such action is necessary (see Matter of 2433 Knapp St. Rest. Bar Inc. v. Dept. of Consumer Affairs of City of New York , 150 A.D.2d 464, 465, 543 N.Y.S.2d 911 [2d Dept. 1989] [Holding that, in light of an approximately 2 1/2-year delay in deciding the petitioner's request, "fairness requires that ... a determination rendered promptly"]). Considering DOE swore in August of 2021 that it "anticipate[d] that [it would] make a finding in the near future — hopefully, within the next two months" [NYSCEF Doc. No. 100 ¶ 3] and the State Respondents recently informed the Court that it "was willing to commit to providing such a determination within 90 days of receiving complete information and a recommendation from DOE" [NYSCEF Doc. No. 169 at 1], there should be no reason why a determination cannot be reached within the next four months. That timeframe will afford one additional month to conclude the investigation and the additional three months suggested by the State Respondents to craft a determination on the merits.
By letter to the Court dated June 3, 2022, counsel for the City Respondents confirmed that the underlying investigation remains incomplete but that "[t]he DOE's visit to YMAH is now scheduled to take place next week and, following the visit, the DOE will expeditiously prepare its recommendation" [NYSCEF Doc. No. 171].
III. CONCLUSION
For the reasons detailed above, the City Respondents’ motion to sever/transfer Petitioner Shapiro's FOIL appeal is granted, Petitioners’ discovery motions are denied, Respondents’ motions to dismiss are denied, and the Petition is granted to the limited extent that the Determination is annulled and the matter returned to it for a determination on the merits to be issued within four months of the date of this Decision and Order.
To the extent that any remaining arguments have not been addressed specifically in this decision, they have been considered by the Court and found to be without merit.