Supreme Court granted the motion of Board of Education of the City School District of the City of New York [DOE] to dismiss the Plaintiffs' petition to annul votes of the Panel for Education Policy [PEP] changing the utilization of New York City school buildings in Brooklyn and Queens because of Plaintiff's alleged failure to comply with provisions of the Education Law and [DOE] Chancellor's Regulation A-190.
Plaintiff appealed the Supreme Court's ruling.
The Appellate Division, citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, and Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 88 AD3d 72, unanimously affirmed DOE's motion, without costs, opining "Supreme Court properly dismissed this proceeding based on [Plaintiffs'] failure to exhaust their administrative remedies, .
The court explained that Plaintiff's CPLR Article 78 petition challenged "the determination to locate or co-locate a charter school within a public school building . . . that has been approved by the board of education" for both buildings, which "may be appealed to the commissioner" of the New York State Department of Education under Education Law §310 (Education Law §2853[3][a-5]).
Thus, as shown by the DOE's exhibits, which included several decisions of the Commissioner of Education reviewing "the adequacy of educational impact statements and building usage plans, as well as compliance with procedural requirements, in challenges to PEP votes approving charter school co-locations in the City of New York", Petitioners' claims cannot be brought under CPLR Article 78, since they "can be adequately reviewed by appeal to a court or to some other body or officer", citing Education Law §§2590-h[2-a][b][i]-[vii], 2853[3][a-3][2][A]-[F].
Plaintiffs' had contended that the educational impact statements failed to adequately address the impact on class sizes. However, said the Appellate Division, "Even if this were such a violation", Plaintiffs would still be required to exhaust their administrative remedies by appealing to the Commissioner of Education.
In the words of the Appellate Division: "Contrary to the Plaintiffs' contention, the petition does not raise a pure question of law, as it challenges the facts underlying the DOE's assumptions of projected class size for the public schools to be housed with the co-located charter schools, and raises other factual allegations related to safety and traffic that they claim the DOE overlooked or insufficiently addressed, among other things".
Click HERE to access the decision of the Appellate Division posted on the Internet.