SUPREME COURT CHAMBERS

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1 STATE OF NEW YORK SUPREME COURT CHAMBERS RENSSELAER COUNTY COURTHOUSE TROY, NEW YORK (518) RAYMOND J. ELLIOTT, III JUSTICE JESSICA B. MOCERINE LAW CLERK September 19, 2017 Gary Svirsky, Esq. Brad M; Elias, Esq. Matthew Schock, Esq. O'Melveny & Myers, LLP Times Square Tower 7 Time Square New York, New York Louis Jim, Esq. Assistant Attorney General Office of the Attorney The Capitol Albany, New York David J. Butler, Esq. Randall M. Levine, Esq. Stephanie Schuster, Esq. Morgan, Lewis & Bockius, LLP 101 Park Avenue New York, New York Douglas E. Gerhardt, Esq. Harris Beach PLLC 677 Broadway, Suite 1101 Albany, New York David G. Sciarra, Esq. (pro hac vice) Education Law Center 60 Park Place, Ste. 300 Newark, New Jersey Re: David A. Curry, et al v. NYS Education Department, et al Index No Dear Counselors: Enclosed please find the Court's Decision and Order with

2 regard to the above-entitled matter. The original Decision and Order is being sent to Attorney Jim for filing with the Albany County Clerk's Office and service accordingly. The original supporting papers have been forwarded to the Albany County Clerk's Office for filing. RJE/jbm enc. Raymond J. Elliott, III Supreme Court Justi6e

3 At a Special Term of the Albany County Supreme Court, held in and for the County of Albany, in the City of Albany, New York, on the 19th day of PRESENT: HON. RAYMOND J. ELLIOTT, III JUSTICE STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In the Matter of DAVID A. CURRY, LUIS NIVELO and ROMEL ALVAREZ, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules DECISION AND ORDER INDEX NO against- NEW YORK STATE EDUCATION DEPARTMENT, NEW YORK STATE BOARD OF REGENTS, MARY ELLEN ELIA as COMMISSIONER OF EDUCATION, and MERRYL H. TISCH as CHANCELLOR OF THE BOARD OF REGENTS, Respondents. APPEARANCES: O"MEL VENY & MYERS LLP Attorneys for Petitioners (G. Svirsky, B. Elias and M. Schook, Esqs. of Counsel) Times Square Tower 7 Times Square New York, New York

4 EDUCATION LAW CENTER Attorneys for Petitioners (David G. Sciarra, Esq. of Counsel) 60 Park Place, Suite 300 Newark, New Jersey HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorneys for Respondents (Louis Jim, Esq., AAG of Counsel) The Capitol Albany, New York MORGAN, LEWIS & BOCKIUS LLP Attorneys for Intervenor (D. Butler, R. Levine and S. Schuster, Esqs. of Counsel) 101 Park A venue New York, New York HARRIS BEACH PLLC Attorneys for Intervenor (Douglas E. Gerhardt, Esq. of Counsel) 677 Broadway, Suite 1101 Albany, New York RAYMOND J. ELLIOTT, III J.S.C. Petitioners commenced this CPLR Article?8 proceeding on behalf of their school-age children and seek an order directing the respondents to perform their constitutional duty to provide all students in the East Ramapo Central School District ("District") with the opportunity to receive a sound basic education. The petitioners seek mandamus to compel the respondents to assure the District is provided with the necessary resources to provide the students with a sound basic education. The petitioners contend the District has failed to deliver the necessary resources to the schools as a result of the District's neglect and mismanagement. The respondents and the District as intervenor, move to dismiss the petition pursuant to CPLR 321 l(a) and CPLR 2

5 7804( ). The petitioners oppose the motion to dismiss the petition. The petitioners claim the District's School Board ("Board") is controlled by the ultraorthodox Jewish community which has systematically diverted resources to private yeshivas at the expense of low-income public school districts. The petitioners contend there are 33,000 school-age children in the District with one-third attending public school and two-thirds attending private yeshivas. The petitioners allege the Board has consistently increased funding to private yeshivas while reducing public school programs and financing. The petitioners claim the District and the Board have grossly mismanaged the District's finances and have "sabotaged" the rights of school children to obtain a sound basic education. The petitioners maintain this Court should direct the respondents to fulfill their non-discretionary duty "to intervene and take prompt remedial action as may be necessary and appropriate to ensure that East Ramapo public school students have the resources necessary to ensure the opportunity to a sound basic education." The petitioners contend the respondents conducted several investigations in regard to their claims against the District. The investigations determined the District "cut funding, programs and staff from public schools" and "substantially increased funding that benefitted the private yeshiva school students." The petitioners claim they wrote to the respondents on August 31, 2015, and requested immediate action in regard to the District's constitutional deficiencies. The petitioners maintain the respondents never responded to their complaints. The petitioners allege the respondents have abdicated their constitutional duty to provide the students with a financially stable District and a sound basic education. In support of the motion to dismiss, the respondents contend the petitioner failed to allege a claim that their children did not receive a sound basic education in that they are unable to be 3

6 "civil participants" in society pursuant to the New York State Constitution and Education Law. The respondents claim the petitioners have failed to allege they suffered any actual injury and therefore lack standing. The District alleges the separation-of-powers doctrine bars petitioners' claims since the Court cannot encroach on the legislative or executive authority to dictate education policy. The District also alleges this proceeding is time barred as the petitioners failed to act "within a reasonable time" when they did not get a response to their August 31, 2015, letter to the respondents. The respondents contend the petitioners are not entitled to mandamus as they do not seek to compel the performance of a non-discretionary ministerial act. The respondents claim school districts are independent bodies and are vested with substantial powers pursuant to Education Law 1805, Respondents maintain the petitioners do not have standing to maintain this action. In deciding the issue of standing, the court must first determine whether the individual party seeking relief sustained an injury. (Mahoney v. Pataki, 98 NY2d 45 [2002]). Standing is a threshold determination and the burden of establishing standing to raise a claim is on the party seeking review. (Society of Plastics v. County of Suffolk, 77 NY2d 761 [1991]). To establish standing in an action against a government body, the petitioners must show that they "will actually be harmed by the challenged administrative action" and that the harm is different from that of the public at large. (Save the Pine Bush, Inc. v. City of Albany, 13 NY3d 297 [2009]; Matter of Transactive Corp. v. New York State Dept. a/social Servs., 92 NY2d 579 [1998]). In addition, to have standing to commence an action, petitioners must demonstrate an actual legal stake in this outcome and an injury in fact worthy and capable of judicial resolution. (Mittlemark v. County of Saratoga, 85 AD3d 1359 [3rd Dept. 2011]; Aiardo v. Town of East Greenbush, 64 4

7 AD3d 849 [3rd Dept. 2009]). The petitioners have failed to sufficiently demonstrate that they sustained "special damage", different in kind and degree from the community in general. (Matter of Fund for Lake George, Inc. v. Town of Queensbury Zoning Bd. of Appeals, 126 AD3d 1152 [3rd Dept. 2015]). The petitioners have not shown they would suffer direct injury different from that suffered by the public at large and the injury asserted falls within the zone or interests to be protected by the statute or constitutional guarantee. (Matter of Graziano v. County of Albany, 3 NY3d475 [2004]; Matter of Dairylea Coop. v. Wakley, 38 NY2d 6 [1975]). From the facts presented, the petitioners do not have standing to commence this proceeding alleging violations of the New York State Constitution and Education Law. (New York Psychiatric Ass 'n, Inc. v. Mills, 29 AD3d 1058 [3rd Dept. 2006], lv denied 7 NY3d 708 [2006]). Respondents also seek to dismiss this CPLR Article 78 mandamus action pursuant to CPLR 321 l(a) and CPLR 7804(±). A CPLR Article 78 proceeding which seeks to compel a government official to undertake a particular act is in the nature of a Writ of Mandamus. (see, CPLR 7801; Klostermann v. Cuomo, 61NY2d525 [1984]). Mandamus is available to compel the performance of a non-discretionary duty only where there has been a showing of a clear legal right to the relief sought. (see, CPLR 7803; Hassig v. NYS Dept. of Health, 5 AD3d 846 [3rd Dept ]). "Mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment and only when a clear right to the relief has been demonstrated." (Matter of Rose Woods, LLC v: Weisman, 85 AD3d 801 [2nd Dept. 2011]). Where a party seeks to compel a public official to undertake a purely discretionary act, a writ of mandamus is not available. (Bruscov v. Braun, 84 5

8 NY2d 674 [1994]). Mandamus is addressed to the discretion of the court and a denial of such relief will not be disturbed without a showing of an abuse of discretion. (County of Albany v. Connors, 300 AD2d 902 [3rd Dept. 2002]. After a review of the record, the relief the petitioners seek is not subject to a writ of mandamus. The petitioners seek to compel the respondents 1) to intervene and take such action as may be necessary and appropriate to remedy the ongoing violation of students' constitutional right to a sound basic education in East Ramapo, 2) to implement the recommendations of Greenberg, ELL, Focus and Monitors' Reports as are necessary to fulfill their constitutional duty to East Ramapo students and 3) require respondents to report their progress to the Court within 30 days of the issuance of the order, and periodically thereafter. The actions the petitioners seek to compel the respondents to perform are discretionary arid not ministerial and not entitled to a writ of mandamus. (Maron v. Silver, 14 NY3d 230 [2010]). Accordingly, the instant CPLR Article 78 Petition is dismissed. This shall constitute the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is being returned to the attorneys for the respondents. All original supporting documentation is being filed with the Albany County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR Counsel are not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry. SO ORDERED AND ADJUDGED ENTER 6

9 Dated: September 19, 2017 Albany, New York RAYMOND J. ELLIOTT, III. Supreme Court Justice Papers Considered: I. Notice of Petition dated January 13, 2016; Verified Petition dated January 13, 2016; 2. Notice of Motion dated March 21, 2016; Affirmation of Louis Jim, Esq. dated March 17, 2016 with annexed exhibits 1 & 2; Memorandum of Law dated March 17, 2016; 3. Affirmation of Brad M. Elias, Esq. dated March 30, 2016 with annexed Exhibit A; Petitioner's Memorandum of Law dated March 30, 2016; 4. Proposed Intervenor's Memorandum of Law dated April 5, 2017; 4. Petitioner's MemorandumofLaw dated July 28, 2016; 5. Notice of Intent to Request Judicial Notice dated January 10,

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11 NY- PRODUCTION CTR (OME-04022)(0ME-04022) - Job# Page 1of1 CALENDAR REQUEST Job Number Requested Date f9/22/ :57 AM Requested By ICALENDAR,LITIGATION Due Date r9/22/ :57 PM User ID Case Number Client Number poo1271 Matter Number foool Phone Office Floor Room Number Number of Documents 11_.o_o_o.... Client Name Matter Name fducation LAW CENTER the Matter of David A. Curry Legal Team 1 Legal Team 2 Number of Pages including coversheet 11 sent to Calendar Document Type LETTER Method of Service GZJ USPS Mail D Overnight Courier --' Exception D Digital media copy enclosure [J Medical records [J Personally Served [J Orginally signed do Other I ostmark date-date sent tj I I cuments Deliver Original To Partial Scan O Document larger than 100 pages D Bound document D Certified document D Exhibits IELIAS,BRAD Time Received to Mailroom l._o9_/_2_2;_2_0_17_06_:_59_a_m, Special Instructions httn://dunlication.intranet.omm.com/svmnhonv/ Annlications/JT Print.asnx?SITE=OME /22/2017