• • Case 1:03-cv-0248,9-DGT-RLM Document 1 Filed 05/16/03 Page 1 of 18 PageID #: 1 ,,,
UNfTIID STAT~DISTRICT COURT EA~TERN DIST,RICT OF NEW YORK
D.-r,-~-~~~~~-b;-~~-fu~~~-~-~~~-~~~~;~~d"N~~~-"--ev 03· 24 8 9

Friepd, V. D.,

'

03 eiv. ( )

Plaintiff,

, -against-

COMPLAINTmEMAND FOR

419 I:

JURY TlijAL

NEW YORK CITY BOARD OF EDUCATION, NEW YOfK CITY DEPARTMENT OF EDUCATION, JOljL;KLEIN, ChanCellor of New ,York City Schools"

~~,-~,<"-~~~..#'><,;-t.'I~"1,~;\)\~'AAV()t,I'.f'., j ,

DR~ANGELO GIM0NDO, Supenntendent, Commumty ~#'& ,IV;:, O~·-

SchPoI District 30, NELLY REAL-KORB, Chairperson, <5' ~ ~

, Con'unittee on Preschool Spedal Education (CPSE) ,><0' ~ C~

, Dis&ict 30, RICHARD P. MILLS, Commissioner of the .. g,..O

New York Stale Education Department, THE CITY OF

<Q

M,J, "I ttMII.\,

NEW YORK,

W1t'\\'t'"

-----,,-------------D--e--f-e-n-d--a-n--t-s-.---------------------------------------l(

, ,

PlaintiffD. D. (by his mother and next friend, V. D.), by his attomeys Emery

, Celli Cuti Brinckerhoff & Abady PC, for his Complaint alleges as follows:

PRELIMINARY STATEMENT

1. This is an action arising out of defendants' violations ofD. D. 's federal

, stattitory rights under 42 U.s,C. § 1983, the Individuals with Disabilities Education Act

("ID)3A"), the Americans with Disabilities Act, and tbe Rehabilitation Act of 1973.

2. D. D. is a disabled, develOpmentally-delayed, four-year-old child. The

, Dep!mment of Education, its own Committee on Preschool Special Education, its own hearing

offi~er, and D. D:s ~other all agree: D. D. needs special education services immediately. Yet,
,

, i

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ORIGINAL

• • Case 1:03-cv-0248,9-DGT-RLM Document 1 Filed 05/16/03 Page 2 of 18 PageID #: 2 , . notfitbstanding its own hearing officer's order, the Department has for over eight months done
notljing to provide the "free appropriate public education" which D. D. desperately needs, and to
whiCh he is entitled under federal law .
3. D. D. brings this action to compel the defendants to do what they are
,obligated to do under the statutes cited above: comply with the hearing officer's decision, comply
witli their own recommendations for special education services, and compensate D. D. for the
,marl,y m. onths of education that he has lost. D. D. seeks an injunction, damages, and related
reli~f. '

TIlE PARTIES
j
4. , Plaintiff D. D. is a four-year-old child residing at 35-56 77'" Street, in
, Jac~on Heights, Ne~ York. D. D. has been classified as a child with a disability, as that term is
,, defined in 20 U.s.C. '§ J40J(3)(B). By reason of D. D:s disability, D. D. needs special education
, andrel.ated services. e

5. D. D. is and was at all times mentioned herein the son ofV. D., his mother j

and Next Friend, in whose custody and care he resjdes.

I

'

6. Defendants Board nf Education of the City of New York and Department

011$,,,",100 of the City of New York (referred to collectively as "Department"') is an entity
o;g~""od and existing under the Jaws of the State of New York whose purpose is to own, ~llA,!.o, and operate the public schools in New York City. The Department has established

. ~;t:;:::;:;:~::;i;I~~;:;:::::;:~":':"~ and their somewhat murkthyelBegoaalrsdtaotfuEs,dpulcaaintitoifnfisnuteostbhoetDh ethpearBtmoaerndt oanfd the
2

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 3 of 18 PageID #: 3

j .

.,

poli:cies and procedu'res; both written and infonnal, concerning the implementation oflhe IDEA.

1
,The:Departrnent w::eives funding pursuant to the IDEA, 20 V.S.c. § 1412, and therefore must

co~pl;y with the statute's provisions. At all times relevant hereto, defendant Department was

res~onsible for the policy, practice, supervision, implementation, and conduct of all Department
i
and!was responsible for the appointment, training, supervision, and conduct of all Department
. ;
p~nnel. In addition, at all relevant times, defendant Thlpartment was responsible for enforcing
Ll~S the of the Department, and for ensuring that Department personnel obey the laws of the
Uti.i~ : , States and of'the State of New York

7. Defendant Joel Klein is Chancellor of the New York City Schools. As
,sch~ls Chancellor, defendant Klein has the power and duty to perform any duty imposed upon
the :pepartment of Education, including the operation of all special education programs and

services. At all timeS relevant to the events described herein. defendant Klein acted under color I
of'14Iw' of the State of.New York and in his capacity as an agent, servallt, and employee of
defe:ndant New York.Oty andlor Department, and within the scope of his employment as such.

,

- Defendant Dr. Angelo Gimondo is the Superintendent of Community

1
Sch?ol District 30. On information and belief, defendant Gimondo, as Superintendent, has

au~brity ~esponsible , over and is

for the implementation, supervision and provision of

edu9ational programs for all children in District 30 including children with disabilities. At all

, timds relevant to the e'. vents described herein. defendant Gimondo acted under color oflaw of the
Sta~, of New York mid in his capacity as an agent. servant. and employee of defendant New ,
Yort City andlor De~artment, and within the scope of his employment as such.

i

9 . ' Defendant Nelly Real-Korb is the Chairperson of the Committee on

"

3

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 4 of 18 PageID #: 4

j

• , Pre~chool Special Education ("CPSE") in School District 30. On information and belief,

,

. •

Defrnilant Real-Korb, as Chairperson, has authority over and is responsible for the evaluations

,

and~educational programs of all children with disabilities in District 30. At all times relevant to

the events described herein, defendant Real-Korb acted under color of law of the State of New Yor~ and in her capacity as an agent, servant, and employee of defendant New York City andlor

Deriarunent, and within the scope of his employment as such.

10. '. Defendant Richard P. Mills is the Commissioner of the New York State

I

.

Edu~ation Department ("SED"), As Commissioner, defendant Mills has the power and duty to

j

pe~orm any duty imposed upon the SED, including the operation of all special education

, prohmns and services. At all times relevant to the events described herein, defendant Mills
! actel:J under color oflaw of the State of New York and in his capacity as an agent, servant, and
, ,
em~loyee of SED, and within the scope of his employment as such. SED is a recipient of federal

fun4s under the IDEA and is mandated by the IDEA to ensure the administration of special
, edu~aiion and related services to all children with disabilities between the ages of three and
1
twe~ty-one who reside in the State of New York, including the disbursement of.IDEA funds to
i
, _loca:) school districts and on information and belief certification of private schools that can
_pro~de special education services to preschool children.

11. Defendant City of New York ("City") is a municipality organized and
,
, ; exisUng under the la"ys of the State of New York. At all times relevant hereto, defendant City, ,
, . acti4g through the odparrment of Education, was at least in part responsible for the policy,
practice, supervision; implementation, and conduct of all Department matters and was

reswInsibJe for the ap.pointment, training, supervision, and cooduct of all Department personnel.

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, • • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 5 of 18 PageID #: 5
,

In atldition, at all rel~vant times, defendant City was at least in PaJ1 responsible for enforcing the

!

'

rulds- t of the Departm6nt, and for ensuring that Department personnel obey the laws of the United

,, St~,s-and

of

the

State
'

of

New

York.

12. -, Defendants Mills, Klein, Gimondo, and Real-Korb are referred to

,
, collectively as the "individual defendants." Eacb individual defendant is sued individually and in

~r, his her official cap,acity. At all times mentioned herein, each individual defendant acted under

J

' :"

the ,color of New York State law, in the capacity of an agent, servant and employee of defendant

I

,

Dep;mment, defendant City, or SED and within the scope of his or her employment.
:

1

JURISDICTION AND VENUE

I

j ,

13. - This action arises under 42 U.S.C. §§ 1983 and 1988; the Individuals With

I

.

, Disljbililies Education Act ("IDEA"), 20 V.S.c. § 1400 et. seq; the Americans with Disabilities

~ ,

Act:of 1990, 42 U.S.C. § 12132, at. seq.; Section 504 of the Rehabilitation Act of 1973, 29

!

v.sic.
l '

§

794,

as

ame(n- ded

by

the

Civil

Rights

Restoration

Act

of

1987;

and

New

York

State

law.

,,,i

14, ~ The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331,

l34ha)(3) and (4), 1~67(a), and the doctrine ofsupplementaljurisdiction.
, ,
i . 15.:" The acts complained of occurred in the Eastern District of New York and

, ,
•

,~s i~ th~~ ven*e lodged

Court pursnant to 28 U.S.C. § 1391(b).

, i

,!!

,JURY DEMAND

16. .: Plaintiff demands trial by jury in this action.

5

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 6 of 18 PageID #: 6

!

FACTUAL ALLEGATIONS

!

17. Congress enacted the IDEA to ensure that students with disabilities have

, me!,jningful access to public education. States who participate in the IDEA receive substantial
, fed~ra,l funds in exchange for their agreement to provide a free appropriate public education to all
dlsabled children in the state, and to comply with the IDEA's procedural and substantive

,

18. New York has chosen to participate in the IDEA framework, and has

i

esta,blished procedure.s for providing special educational services to children with disabilities, set •
, forth at N.Y. Educ. Law § 4401 et seq.

19. The primary mechanism for ensuring implementation of the IDEA's ;
, , ma1date of a free aP1?ropriate public education is the Individualized Education Plan ("IEP"). An . ,JEFjis'a written statement, prepared for every child with a disability, that sets forth the special edu¢ation and related,services, supplementary aids and services, and program modifications or
SUP~()tts for school p'ersonnel, to be provided to the child, or on behalf of the child.

20. "D. D. was born on July 27, 1998 and lives with his parents in Jackson
,Heights, New York. In September 2002, shortly after he turned four, his parents senl him 10
schOol for the first time, at BWY preschool. BWY is a regular public school that offers no

spec.lal education services.

1.,,

21. ': Soon after D. D. began attending school, his mother asked the school to

i

eValpate him to dete~ine whether he had any developmental problems. The school referred the

. ! mat(er 10 the New Y~rk City Department of Education Committee on Preschool Special I

, .Ed,uCation ("CPSE")i.in school District 30.

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• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 7 of 18 PageID #: 7

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22. In October 2002, CPSE arranged for a Dumber of specialists to evaluate D.

i

,D. iThe evaluationS,revealed that D. D. had significant developmental difficulties. In cognitive •

dev~lopment, D. D. functioned in the Slow Learner range according to SB-4, could not
i
,co~prehend the con~epts of 'one' or 'more,' compare sizes, or count with correspondence. D.

,D.'~ fine motor skill~ and receptive and eJCpressive language skills were all significantly delayed.

D.l? )Nas unable to understand descriptive concepts, group objects, or negatives. He was also

i
- um¢Je to compare objects, identify pictures, or identify body parts au self. He could not use
I

vert!+ing, produce sentences, tell how an object was used, answer questions logically, use several

•

, proJouns, or tel1 ilbol,1t remote events.
, •

;

23. '; A licensed speech-language pathologist diagnosed D. D. with "a severe

i .

pho!J.ologicai disorder," with "deviant phonological processes" in the areas of "assimilation,

st~pping · SYUlbie reduction,

and final consonant deletion."

I

·!, .

24. " After fOlTIlal tests, the pathologist concluded that D. D.'s auditory

· cOnlprehension, expressive communication, and total language skills were all in the 1" percentile,

I
on ~scale of I to IDq, where 1 is the lowest.

I

25. , Based on these scores, D. D., who was 4 years 2 months old, had an age

I
equi;Yalence

of

2

years

6

months.

j

26. :. The pathologist also concluded that D. D. "exhibits a moderate to sever[e]

! ,

, exp.¢ssive/receptive/pragmatic language disorder with skills greater than 50% delayed in
· .

com~arison ·

to his chronological age," as well as "a moderate to severe phonological disorder

•
, red~cing intelligibility." She recommended that D. D. receive speech/language therapy to

, impjo~e articulation ~kills and receptive/expressive/pragmatic language skills to age appropriate

7

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 8 of 18 PageID #: 8

27. D. D. also received an education evaluation, which determined that he
I

, fun~tioned in the 2.6-3.0 year range in cognitive skills, 2.0-2-6 year range for communication,

2.0~.6 range in fine motor skills, 2,0-2.6 range for social/emotional skills, and 2.0-2.6 range in

i

adap,tive skills. The evaluation also noted D. D.'s "limited attention span" and inability to

1 ",

"esthblish and maintain eye contact" or interact with other children; his inability to use plurals,

!

'

pos~essives, pronouns or negative phrases; and fine motor skills so poor that he was unable to

;
'open, and close scissors.

I

28. A licensed psychologist also evaluated D. D., concluding that in cognitive

i ,

1,fungti9uing, verbal reasoning, abstract/visual reasoning, quantitative reasoning, and short-term

me+ory domain, D. D. was either inlhe "Low Average" or "Slow Learner" range. The

,Psy4h610gist reco~eJlIled that D. D. receive special education services to address delays in his

,. CO~itive fuilctioninl\., social skills and communicatiou skills.

I '

" Fiually, D. D. received an occupational therapy evaluation, which found

in ""ig~.'fi'm' deficits fine motor skills and visual perceptual-motor skills," and "[c]omposite

fi'"[''O<''' skills'''in the 2nO percentile with a rating of poor." The occupational therapist

"ooioo,,,,',""" ",oe"",, D, D',

"'X'"P,ti",>! therapy services ... two times per week for 30

m.1"~ each individual session to facilitate improved performance in an education settiug."

30. : As a result of these evaluations, Ms. Draguu met at a formal conference

'3<,,,,, wi'~

Grammatikopoulos, the District 30 CPSE representative, as well as a social worker

,,' f"",,".' education teacher to deterlnine what special education services D. D. required,

3 L ;, At the end of the confereuce, Mr. Granunatikopoulos prepared an IEP for

8

• • Ca,se 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 9 of 18 PageID #: 9

If.J .

•

D, ,'See 20 U.s.q§ J414(d), 8 N.Y.C.R.R. § 200.4(d)(2) (describing purpose, creation, and

,

con(ent ofIEPs).

32. The IEP recollllllended special education services of a "Half day integrated
J
, clasS,2 112 hours per day. 5 days per week with speech and occupational therapy as related i
ser~ces,,, with a staffing ratio in the class of eight students to one teacher. Specifically, the

, 4~ended relat~ services were three weekly 3D-minute sessions of speech and

lan~age-two sessiop.s with one student and one session with three students-and one weekly, ,

, oncion-one 30-minn(e session of occupational therapy.
,

33. ,- The IEP set a "Projected Date of Initiation ofIEP" for December 6, 2002,
i
wit~n two weeks of fue IEP conference.

I

-1

34. Because various doctors who evaluated D. D. had asked Ms. Dragun

, wheFi ber anyone in ho'i; family had autism, she also decided to take her son for an evaluation by a

i

.

neUlJO!.ogist, Dr. Fefer, on Doxember 3, 2002.

,I.

35. Dr. Pefer detennined that D. D. had "Pervasive Developmental Disorder

, i
featlJIes" and "speech: delay," and recommended speech therapy and twenty hours of ABA

(AJIi'ectI Behavioral .Analysis) services per week.

j

36. , Later in December, Ms. Dragnn sent a copy of Dr. Pefer's report toMr.

~atikopou1os, ihe District 30 CPSE represeutative.

,

37. :. December 6 came and went and D. D. received noue of the services

recoIinmended

in

the

iEP.
.

Ms. Dragun repeatedly called Mr. Granunatikopoulos, asking him

Whe~ D. D. would st~ to receive the speech and occupatioual therapy recommended in the IEP.

I

.

But,~. Granunatikojmulos was unable to give a date when the services would begin. He would

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Case 1:03-cv-02489'.-DGT-RLM Document 1 Filed 05/16/03 Page 10 of 18 PageID #: 10

)

,-

say were , OnlY, that there no available slots and that D. D. was on a waiting list.

38. The Department of Education also (apparently) wrote Ms. Dragun a letter
,
on J?ecember 5, 2002 (which she did not see until months later) stating: "At this lime, there is no

, ava(Iability for a H. alf. Day Integrated program."

I

39.: Nothing changed in January of this year. Ms. Dragun kept calling CPSE,

!

".

but fIley were still unable to provide any services or to provide a dale when services would begin.

I? D. , received no speech therapy and no occupational therapy in all of January. He was also not

, pla&d. in a half-day integrated class.

,
•

40. , On February 6, Ms. Dragun wrote a letter to CPSE begging them to help

hcrrn:

My son ... had an IEP meeting on November 20"', 2002. He is approved to

II .

attend,a half day integrated program which he has been waiting for since then
with no avail or success.

I

I would like to request for a meeting so that we can discuss his IEP where he can

, ,

at lea~,t receive some type of services for the present lime. Too much time has been wasted where he is not getting any services. I feel it is crucial that my son

, I

gets some type of services!!!!1

, ,

41. But nothing changed in February. Ms. Dragun was still told that D. D.

, list:~d waslOli a waiting

that the Department of Education could offer him no special education

'.

serv}c~ at all.

j ,

42. In mid-March. Ms. Dragun retained counsel, who immediately filed a

I

,

reqiest for an imp~tl hearing before a Department of Education hearing officer, so that the

,offil<ef would order the Department to provide the services in the IEP.

1 ,

43. , Within two weeks, CPSE scheduled a second conference for:March 31,

,",el," consider amtihding the IEP to add the ABA services recommended by the neurologist,

10

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 11 of 18 PageID #: 11 ,, .
Dr. r~fer. On March 31, after a fonnal conference with Mr. Grammatikopoulos and others, the
,
CPSE-created an amended IEP for D. D.

1 ,

44. This second IEP made a "dual recommendation": first, it reiterated all of

i -

,the recommendations from the November 20, 2002 IEP (half day integrated class, 2 112 hours per

daYi 5 days per week, with speech and occupational therapy as related services); second, it added

,, ten ~durs per week ~f ABA therapy from a special education itinerant teacher ("SElT"), which is

private, one-ou-one therapy that can be given at borne.

I •

"

45. :, Still, throughout all of March, D. D. received no special education services

at alil..

, ,

46. Instead, on March 31, after the second IEP, the CPSE sent another

,"awiuiing placement:notification" letter to Ms. Dragun stating: "At this lime, there is no

avaiI,l.ability for a Hal..f Day Integrated class with speech and occupational therapy. as well as, no
,avai,lability for a SEIT provider." • 47. . On April 11, plaintiff had an impartial hearing before Mindy Wolman,

a New York City Department of Education impartial hearing officer ("Hearing Officer").
Mi ~Gm=,til",p',"ii" testified, as well as Elliot Golden, director of the central based support

for the New York City Department of Education, and Ms. Dragun. Defendant Real-Korb
""~di~ the hearing.
48: .: During the hearing, the Department revealed that D. D. was one of many

'j

were not receiving any services. The

D"p~rirn",' p,od,,~d, Wi";", list of 69 such children in District 30 alone (with names deleted).

, •

49. :':Mr. Golden also testified that there were hundreds of other children

II

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 12 of 18 PageID #: 12

eith~r JughOUl other dishicts in New York City who had !EPs but received no services or only

I

-

, par~a1 services.
,

50. Throughout April, both before the impartial hearing and after, D. D. still

recJived none ofibe ~peda1 education services recommended in the first IEP or the second IEP.
,, . ,He received no speec,h therapy, no occupational therapy. and no ABA therapy.

,

51. By dedsion dated April 30, 2003, the Hearing Officer concluded that D.

D. ~. qu.ired the servie, es listed in the March 31 IEP, and ordered the Department to implement the

j

, ~h 31 IEP by May 10 and to provide bim compensatory services this summer.

! ,

52. ; May 10 has come and gone and the Departmellt has not followed the

oroJr.' They have sti)! provided no special education services to D. D.

!

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53.' At the impartial hearing, the Department could not even guarantee that D,

J

D. tOllld receive any special education services by September 2003.

,

54. i. In the absence of appropriate services or other assistance, D. D,'s disability

!

'.

bas fubstantially impeded his educational progress.

,!i

55. , The practice by which school districts do no! implement their own IEPs or

I
, - couiply with the decisions of impartial bearing officers, fail to make slots available to children

~ducation, whJ require special

fail 10 certify a sufficient number of schools to provide special

!

'.

,, eduokt.ion services to:preschool children, and fail to provide services mandated by the IDEA-all
of\1ihich apparently prevented D. D. from receiving the special education services he required-is

,, per:s,'is~t and widesp.read. 56. > The individual defendants are aware, or should be aware, of this practice, J
,but pI ave failed to take. sufficient steps 10 end it.

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I

57. Defendants' failure to provide D. D. with the services to which be is

I

,, .

entitl<id
.

has

had,

and

continues

to

have,

an

irreparable

impact

on

his

education

and

his

,de~l6pment.

•

58.

As of the date of this complaint, D. D. has still not received any of the

i
,speyial education an~ related services recommended by the mps or ordered by the Hearing

,Off,icer. •

•

59. The acts of the individual defendants were reckless, willful, wanton,

I

maUcious, and/or intentional, thus entitling plaintiff to an award of punitive damages.

60. _ Defendants' acts proximately caused D. D. and his family mental and

• emOtional injuries and anguish, impeded his development, and deprived D. D. of II free

I

, •

appropriate public education for over eight months.
, •

1 ,

AS AND FOR A F1RS'l' CLAIM FOR RELIEF

I

42 U.S.c. § 1983 61. Plaintiff repeats and realleges the foregoing paragraphs as if the same were

set fully forth at length herein. ! '

62. By refusing 10 implement the order of the Impartial Hearing Officer,

ref$hig to implemen:t any of the services recornffiended in the November 2002 and March 2003

j

. mps, failing to provide D. D. any special education services at all, and denying D. D, a free

, ,,(:.

" ..

: apprpriate public education, defendants deprived plaintiff of rights, remedies, privileges, and

i~u~lies guarant~d to every citizen of the United States, in violation of 42 U.S.c. § 1983,

inci~ding, li~ited ,, . but not

to, rights guaranteed by the IDEA, 20 U.S.C. § 1400 et. seq.

I

63. Defendants acted under pretense and color of stale law and in their

j

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, • • CasIe,, 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 14 of 18 PageID #: 14

.

.

, ind{vidual and official capacities and within the scope oflbe!r respective employments as City,

, SED, andlor Department employees and/or olIicers. Said acts by defendants were beyond the

_ sco~e of their jurisdiction, without authority oflaw, and in abuse of their powers, and said
,
- def~dants acted willfully, knowingly, recklessly, and with the specific intent to deprive plaintiff
! ,
of IVs l::onstitutional rights secured by 42 U.S.C. § 1983, and by the IDEA.

64, As a direct and proximate result uflhe misconduct, plaintiff sustained the

d4ages hereinbefore alleged, and defendants have caused D. D. injury, including irreparable

injury, which will co~tinue unless defendants are enjoined from their unlawful conduct.
.1,

65. 'Plaintiff repeats and realleges the foregoing paragraphs as if the same were
,
fullt set forth at length herein.

,

i ,

66. The IDEA creates a right for children with disabilities to have a free

app~priate public education provided in conformity with a valid lEP.

,

67. The IDEA creates procedural safeguards to ensure the right to a free

apPlPpdate public education, including the right to have an hnpartial Hearing Officer's final

deC~ion ,

carried out b'y any local educational agency that receives federal financial assistance

j ,
under the IDEA.

i ,

68. , Defendants' failure to (i) follow the order of the hnpartial Hearing Officer,

(ii) (mplement any o~the services recommended in the November 2002 or March 2003 rEPS;

, I

- .j

(iii)frOvide D. D. any special education services at all, and (iv) provide D. D. a ''free appropriate

.,, puh(Iic.,education,'~

'
an:;

violations

of

D.

D.'s

rights

under

the

IDEA.

,W'\13~J\11IMM2062.WPD

14

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 15 of 18 PageID #: 15 69. As a direct and proximate result of the misconduct, plaintiff sustained the
~ages hereinbefore alleged, and defendants have caused D. D. injury, including irreparable
i injufy, which will continue unless defendants are enjoined from their unlawful conduct.
i
i

70. " Plaintiff repeats and realleges the foregoing paragraphs as if the same were

fuJ1± set forth at len~th herein.
i

71. • As noted in the IEPs and evaluations of D. D., and as noted above, D. D.
i

has tlevelopmental disabllities, is on the autistic spectrum and has physical impairments that

sub~tantially
I .

limit

on~

or

more

major

life

activities,

including

talking,

conununicating,

learning,

I

, and 'interacting with others.

I •

72. ; As evidenced by his IEPs, D. D. also has a record of such impairment, and

I

is regarded as having such impainnent.

I

"

73. D. D. is qualified to receive a free appropriate public education in

I
defe,ndant's schools..

!

74. Both District 30 (through two !BPs) and an hnpamal Hearing Officer have

dele~ed ~son that by

ofD. Do's disability, he needs a placement with various special

i
,edu~atJon services, bpt defendants have failed to provide this as ordered by the Impartial Hearing

I, . Offi,cer and as recominended in the two !BPs. 75. .: Defendants, in failing to reasonably accommodate D. D.'s disabilities by

, .

pro~iding i

him

with

th. ese

services,

and

by

failing

to

provide

him

with

an

appropriate

education,

hav~ d'iscriminated against D. D. on the basis of his disability in violation of the Americans with
I

15

• • ,
Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 16 of 18 PageID #: 16

J ,

,.

: Di'sbiiities Act of l~O, 42 U.S.C. § 12132.

I .

,

76. As a direct and proximate result of the misconduct, plaintiff sustained the
J
dam!ag-es hereinbefore. alleged, and defendants have caused D. D. injury, including irreparable
injuiy; which will continue unless defendants are enjoined from their unlawful conduct.
i

J

::AS AND FOR A FotJRTH CLAIM FOR RELIEF

•

Rehabilitation Act

! 77. . Plaintiff repeats and realleges the foregoing paragraphs as if the same were
·fullyI s.et forth at le' ngth herein.

78. Defendants are recipients offederal financial assistance.

, ,

79. .: As noted in the IEPs and evaluations ofD. D" and as noted above, D. D.

has •~evelopmenlal disabilities, is on the autistic spectrum and has physical impairments that

1_, sub~tantial1y limit on,e or more major life activities, including talkiog, communicating. learning,

I

.

andFieracting with 9thers.

•

i

" Both District 30 (through two mps) and an Impartial Hearing Officer have

, renwll dete•iuuned that by • ofD. D.'s disability, he needs a placement with various special

edu4ation services, but defendants have fulled to provide this as ordered by the Impartial Hearing

I .

.

t

i

, Offipef and as recoll$lended in the two IEPs.

83. ; Defendants, in failing to reasonably accommodate 0, D.'s disabilities by

,! " W:\il2311I1MM21)62.WW

16

j

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 17 of 18 PageID #: 17

p~!iding t~ese -

him with services, and by failing to provide him with an appropriate education,

I .

, hav~ 4iscriminated a~ainst D. D. on the basis of his disability, in violation of Section 504 of the

,Rettabllitation

Act .

of.

1973,

29

U.S.C.

§

794,

as

amended

by

the

Civil

Rights

Restoration

Act

of

19'8~.

,

84. As a direct and proximate result of the misconduct, plaintiff sustained the

,danlages hereinbefore alleged, and defendants have caused D, D. injury, including irreparable

il1j,,u~;

which

will

continue .

unless

defendants

are

enjoined

from

their

unlawful

conduct.

!
1
1
, ,
I
! -

I-
I

I

17

,

• • Case 1:03-cv-02489-DGT-RLM Document 1 Filed 05/16/03 Page 18 of 18 PageID #: 18

, I

_ t

, i

WHE/ffiFORE, plaintiff respectfully reque-5ts judgment against defendants as

follows:

(A) an order temporarily, preliminarily, and permanently enjoining defendants,
,
,theif eP1ployees, agellts, and all persons in active concert with them to provide all of the services
, to which D. D. is enti.tled under the IDEA, and to implement the recommendations of the !EPs

, . and;the order of the Impartial Hearing Officer;

,

.

j

(B) an order awarding compensatory education and services, and

. I
reim!bu.rsement for any and all expenses the D. D, has spent for evaluations and services;

, i

(C) : an order awarding compensatory and punitive damages in an amount to be

, detJ,rnliued at trial;

1

, )

(D) , reasonable attorneys' fees and costs under 42 U.S.C. § 1988 and 20 U.S.c.

j

§ t5(i)(3)(B); and:;

, 1

(E) ~,directing such other and further relief as the Court may deemjns! and

proper, together with'attomeys' fees, interest, costs and disbursements of this action.

i
Da¥; May 15, 200~
- I: New York,N;ew York

Yours, etc.,

EMERY CELLI CUTI BRINCKERHOFF
By~ABtr11 lIann M. Maazel (1M 5724) Matthew D. Brinckerhoff (ME 3552)

545 Madison Avenue, 3rd Floor
New York, N.Y. 10022 (212) 763-5000

Attorneys for Plaintiff

"

18

,

 
 Case 1:03-cv-02489-DGT-RLM Document 218 Filed 10/26/06 Page 1 of 1 PageID #: 954

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 1 of 18 PageID #: 955

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2004

(Argued: September 8, 2004

Decided: October 12, 2006)

Docket No. 04-2542-cv

------------------------------------------x

D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next Friend, V.S.; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated,

Plaintiffs-Appellants,

-v.-

NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN; ANGELO GIMONDO, DR., Superintendent, Community School District 30; NELLY REAL-KORB, Chairperson, Committee on Preschool Special Education District 30; RICHARD P. MILLS, Commissioner of the New York State Education Department; CITY OF NEW YORK; JOE BLAIZE, Chairperson, CPSE District 29; MICHAEL A. JOHNSON, Superintendent, Community School District 29; BETH MARINO, Chairperson, CPSE District 25 and MICHELLE FRATTI, Superintendent, Community School District 25,

Defendants-Appellees.

-----------------------------------------x

Before: NEWMAN, CALABRESI and HALL, Circuit Judges.

Plaintiffs appeal from the order of the United States District Court for the Eastern District

of New York (Trager, J.) denying their motion for a preliminary injunction requiring New York

City and the State of New York to provide immediately to all members of the plaintiff class all

services required by their Individualized Education Programs that have been put in place under

the Individuals with Disabilities Education Act. Vacated and Remanded.

1

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 2 of 18 PageID #: 956
ILANN M. MAAZEL (Matthew D. Brinckerhoff and Eric Hecker, on the brief) Emery Celli Brinckerhoff & Abady LLP, New York, NY, appearing for Plaintiffs-Appellants. GRACE GOODMAN (Michael A. Cardozo and Larry A. Sonnenshein, on the brief) Corporation Counsel of the City of New York, New York, NY, appearing for the City Defendants-Appellees. MELANIE L. OXHORN, Assistant Solicitor General (Michael S. Belohlavek, Deputy Solicitor General, on the brief) for Eliot Spitzer, Attorney General of the State of New York, New York, NY, appearing for the State Defendant-Appellee.
HALL, Circuit Judge: Three New York City preschool children with disabilities (“named plaintiffs” and
together with plaintiff class, “Plaintiffs”) filed a class action alleging, inter alia, that the New York City Department of Education (“DOE”)1 and the New York State Education Department (“SED” and together with DOE, “Defendants”) violated their rights under the Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C.A. §§ 1400-1482 (West 2000 & Supp. 2005). In particular, Plaintiffs alleged that Defendants failed to provide them immediately with the educational services mandated by their Individualized Education Programs (“IEPs”) under the IDEA. Plaintiffs moved for a preliminary injunction ordering Defendants to implement all services required by the IEPs immediately. The United States District Court for the Eastern District of New York (Trager, J.) denied the motion. The District Court based its denial of the
1 The New York City Board of Education has been renamed the “New York City Department of Education.” See A.R. ex rel. R.V. v. New York City Dep’t. of Educ., 407 F.3d 65, 67 n.2 (2d Cir. 2005).
2

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 3 of 18 PageID #: 957
preliminary injunction in principal part on its determination that former § 1416(a), which required participating states to “comply substantially” with the provisions of the IDEA, 20 U.S.C.A. § 1416(a) (West 2000), amended by 20 U.S.C.A. § 1416 (West Supp. 2005),2 “raise[d] some question as to whether defendants can be held to an absolute standard of timely providing services to 100% of preschool children with IEPs.”
On appeal, Plaintiffs argue that in evaluating whether they were entitled to a preliminary injunction, the District Court incorrectly used a “substantial compliance” standard to assess the Defendants’ obligation to meet Plaintiffs’ rights. They contend the IDEA confers upon them and all disabled children the right to a “free appropriate public education,” and the Act’s requirement to “comply substantially” with its provisions applies only to the States’ entitlement to continue receiving federal funds.
We agree that the IDEA provides Plaintiffs the right to a free appropriate public education. We also agree that the District Court erred in using the “substantial compliance” standard to determine whether Plaintiffs could prove that right was being denied. We disagree, however, with Plaintiffs’ assertion that their right to a free appropriate public education entitles them to receive the required educational services immediately upon development of their IEPs or within a specific time thereafter. Instead, we hold that the right to a free appropriate public education entitles Plaintiffs to their IEP-mandated services “as soon as possible” after the IEPs have been developed. Because the District Court applied the wrong legal standard, we vacate
2 While this case was pending on appeal, Congress generally amended the IDEA by enacting the Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA”), Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), which took effect on July 1, 2005. Except where noted, the statutory citations herein refer to the IDEA as recodified by the IDEIA.
3

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 4 of 18 PageID #: 958
that portion of the District Court’s order denying Plaintiffs’ motion for a preliminary injunction and remand it for reconsideration under the proper legal standard.
BACKGROUND I. Factual History
The named plaintiffs are three disabled New York City preschool students whose IEPs have been determined. After named plaintiffs received their IEPs, the DOE placed them on a list referred to as the “PN” list.3 The PN list is a waiting list for students who have received IEPs, but for whom educational services cannot be found immediately. A brief description of named plaintiffs’ circumstances is warranted.
D.D. was born on July 27, 1998, and was a New York City resident until July of 2003. D.D. received an IEP in November of 2002 and an amended IEP on March 31, 2003, but he received none of the services required by either IEP through May of 2003.4 A.C. is a New York City resident born on December 21, 1999. He received an IEP on February 26, 2003, with a
3 Plaintiffs refer to the list as the “PNA list” and claim the abbreviation stands for “Placement Not Available.” For their part, Defendants call the list the “Parent Notification” or “Awaiting Placement Notification” list. We refer to the list as the “PN list” without making any determination as to the correct term.
4 After retaining counsel, D.D. had a hearing before a DOE impartial hearing officer on April 11, 2003. In a decision dated April 30, 2003, the hearing officer concluded that D.D. required the services listed in the March 31, 2003, IEP and ordered the DOE to implement the IEP by May 10, 2003, and provide D.D. with compensatory services over the summer. DOE failed to do so. On May 16, 2003, D.D. filed in the United States District Court for the Eastern District of New York an order to show cause for a temporary restraining order and preliminary injunction to comply with and implement the April 30 decision of the impartial hearing officer. Judge Trager granted the temporary restraining order on May 21, 2003. Because D.D.’s parents removed him from preschool and took him out of the country in July 2003, Judge Trager modified the May 21 order to permit DOE to discontinue paying for certain services.
4

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 5 of 18 PageID #: 959
projected start date of March 10, 2003. Although A.C. eventually received speech therapy on an interim basis, he did not receive the occupational therapy, counseling, or school placements required by his IEP for at least three months.5 B.T. was born on October 7, 1999, and is also a New York City resident. He received his IEP on January 3, 2003. Although the projected start date for B.T.’s IEP was “ASAP” meaning “as soon as possible,” he received none of his required services through March of 2003 and only partial services through June of 2003. B.T. was not offered a placement at a school until June 25, 2003. II. The Statutory and Regulatory Framework
The IDEA offers federal funds to states that demonstrate they have “in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A). To meet the IDEA’s requirements, states “must provide each student with a disability ‘special education and related services’ designed to serve the student’s needs.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003) (quoting former 20 U.S.C. § 1401(8) the substance of which is currently codified as 20 U.S.C. § 1401(9)). “The centerpiece of the IDEA’s educational delivery system is the . . . IEP,” Murphy v. Arlington Cent. Sch. Dist. Bd. of Ed., 297 F.3d 195, 197 (2d Cir. 2002) (internal quotation marks
5 Like D.D., A.C. retained counsel. On June 4, 2003, A.C. had an impartial hearing before a DOE impartial hearing officer. According to Linda Wernikoff, Deputy Superintendent for Special Education Initiatives of the DOE, on or about June 4, 2003, DOE informed A.C.’s parents about openings at three programs, but his parents declined the program at one of the schools. At around the same time, A.C. relocated to a different school district. A.C.’s parents were advised that another program in that district was available, but apparently they failed to keep two appointments to view the program. A.C.’s parents subsequently accepted a full day special class program that began July 1, 2003. On July 25, 2003, the impartial hearing officer ordered the DOE to provide compensatory services to A.C. According to Wernikoff, A.C.’s parents made it difficult to move forward with the compensatory services because they initially insisted that A.C. receive a type of therapy not listed on his IEP.
5

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 6 of 18 PageID #: 960
omitted), a written statement that “sets out the child’s present educational performance,
establishes annual and short-term objectives for improvements in that performance, and describes
the specially designed instruction and services that will enable the child to meet those
objectives.” Honig v. Doe, 484 U.S. 305, 311 (1988); see also 20 U.S.C. § 1414(d)(1)(A)
(defining “IEP”).
The IDEA does not specify a time frame for implementing an IEP after it has been
developed. Federal regulations require that once an IEP is adopted for a disabled child, “[e]ach
public agency shall ensure that (1) [a]n IEP . . . [i]s implemented as soon as possible following
the [IEP] meeting[].” 34 C.F.R. § 300.342(b)(1)(ii) (2005).6 According to New York’s
6 The commentary to § 342(b)(1)(ii) provides:
[I]t is expected that the IEP of a child with a disability will be implemented immediately following the meetings under § 300.343. An exception to this would be (1) when the meetings occur during the summer or a vacation period, or (2) where there are circumstances that require a short delay (e.g., working out transportation arrangements). However, there can be no undue delay in providing special education and related services to the child.
57 Fed. Reg. 44794, 44814 (Sept. 29, 1992).
Subsequent commentary states:
It would not be appropriate to add an outside timeline under § 300.342(b) for implementing IEPs, especially when there is not a specific statutory basis to do so. However, with very limited exceptions, IEPs for most children with disabilities should be implemented without undue delay following the IEP meetings described in § 300.342(b)(2).
There may be exceptions in certain situations. It may be appropriate to have a short delay (e.g., (1) when the IEP meetings occur at the end of the school year or during the summer, and the IEP team determines that the child does not need special education and related services until the next school year begins); or (2) when there are circumstances that require a short delay in the provision of services (e.g., finding a qualified service provider, or making transportation arrangements for the child).
If it is determined, through the monitoring efforts of the Department, that
6

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 7 of 18 PageID #: 961
implementing regulations, “[t]here may be no delay in implementing a student’s IEP.” 8
N.Y.C.R.R. § 200.4(e)(1)(i). The board of education must:
arrange for the preschool student with a disability to receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the committee less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided no later than 30 school days from the recommendation of the committee [on preschool special education].
8 N.Y.C.R.R. § 200.16(f)(1).
New York uses a private provider system to provide disabled preschool children with the
programs and services required by their IEPs. As of the fall of 2003, 96 providers approved by
the SED operated 420 private preschool special education programs in New York City. For
services, the DOE maintains a list of more than 900 independent related service providers with
whom it contracts to provide related services to disabled preschool students.
In New York City, there are students for whom services cannot be found immediately.
These students are placed on the PN list. In order to supply the educational services needed by
students on the PN list, the DOE disseminates a monthly report to all approved preschool
there is a pattern o[r] practice within a given State of not making services available within a reasonable period of time (e.g., within a week or two following the meetings described in §300.343(b)), this could raise a question as to whether the State is in compliance with that provision, unless one of the exceptions noted above applies.
64 Fed. Reg. 12406, 12579 (Mar. 12, 1999). These regulations were amended on August 14, 2006 to implement the 2004 amendments to the IDEA. See 71 Fed. Reg. 46540, 46753 (Aug. 14, 2006). The amended regulations will take effect on October 13, 2006. Section 300.342(b)(1)(ii) will be recodified at § 300.323(c)(2), which requires that “[e]ach public agency must ensure that . . . [a]s soon as possible following the development of the IEP, special education and related services are made available to the child in accordance with the child’s IEP.” 71 Fed. Reg. at 46789.
7

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 8 of 18 PageID #: 962
providers asking whether they can provide the identified services to the children on the PN list, provide partial services, or request a child-specific allowance to exceed temporarily an approved class size in order to provide the needed services.
The Secretary of Education “is primarily responsible for the interpretation and implementation of the IDEA and has been granted regulatory and enforcement powers.” See County of Westchester v. New York, 286 F.3d 150, 153 (2d Cir. 2002). To that end, the IDEA includes a substantial compliance provision, authorizing the Secretary to, inter alia, withhold further payments to a state under the Act, if she determines there was a “substantial failure to comply” with the Act. 20 U.S.C.A. § 1416(e)(3) (West Supp. 2005).7 III. Procedural History
On June 16, 2003, the named plaintiffs filed an Amended Class Action Complaint on behalf of “all present and future New York City preschool children with IEPs who have not or will not receive all of the services recommended in their IEPs.” Amend. Compl. ¶ 23. The named plaintiffs alleged that by failing to provide immediately all services recommended in the IEPs, the Defendants “have deprived and will continue to deprive [them] of rights . . . in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the IDEA, 20 U.S.C. § 1400 et seq.” Id. ¶ 140. On June 19, the named plaintiffs moved to certify the class pursuant to Fed. R. Civ. P. 23, and sought a preliminary injunction requiring Defendants “to immediately implement all services required by [IEPs] to all members of the plaintiff class.”
7 At the time the District Court denied plaintiffs’ motion, § 1416(a)(1) contained the substantial compliance provision. 20 U.S.C. § 1416(a) (2000). As a result of the 2004 Amendments to the IDEA, see supra note 2, the substantial compliance provision was modified slightly and moved to § 1416(e). 20 U.S.C.A. § 1416(e) (West Supp. 2005).
8

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 9 of 18 PageID #: 963
On March 30, 2004, the District Court issued a Memorandum and Order granting class certification,8 but denying the preliminary injunction. D.D. v. New York City Bd. of Educ., No. CV-03-2489, 2004 WL 633222 (E.D.N.Y. Mar. 30, 2004). The District Court found that Plaintiffs satisfied the first prong of the preliminary injunction test by demonstrating that continued delays in the delivery of the educational services would result in irreparable harm. The District Court held, however, that Plaintiffs failed to demonstrate a clear or substantial likelihood of success on the merits, and thus failed to satisfy the second prong of the preliminary injunction test. Relying on the Act’s substantial compliance provision, the District Court assumed that to prevail on their claim Plaintiffs must demonstrate that Defendants are not in “substantial compliance” with the provisions of the IDEA. Because the record revealed that Defendants timely provide services to at least 97% of children with IEPs, the District Court concluded it was not clear that Plaintiffs could demonstrate that Defendants were not in “substantial compliance” with the IDEA, and therefore denied the preliminary injunction.
DISCUSSION I. Standard of Review
When reviewing a district court’s denial of a preliminary injunction, we review the district court’s legal holdings de novo and its ultimate decision for abuse of discretion. See McCreary County v. ACLU, 125 S. Ct. 2722, 2737 (2005); NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476 (2d Cir. 2004). We may affirm on any ground supported by the record. NXIVM Corp.,
8 The District Court modified the Plaintiffs’ proposed class definition in order to address Defendants’ concern that it was overly broad because it could be read to include children whose IEPs were only recently adopted and therefore had not yet received services. Thus, as certified, the class consists of “[a]ll present and future New York City preschool children with IEPs who have not or will not timely receive all of the services required by their IEPs.”
9

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 10 of 18 PageID #: 964
364 F.3d at 476. In general, to secure a preliminary injunction, the moving party must demonstrate: (1) irreparable harm, “and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make it a fair ground for litigation, and a balance of hardships tipping decidedly in its favor.” Mony Group, Inc. v. Highfields Capital Mgmt., L.P., 368 F.3d 138, 143 (2d Cir. 2004) (internal quotation marks omitted). A party moving for a mandatory injunction that alters the status quo by commanding a positive act must meet a higher standard, however. Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). That is, in addition to demonstrating irreparable harm, “[t]he moving party must make a clear or substantial showing of a likelihood of success” on the merits, Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (internal quotation marks omitted), a standard especially appropriate when a preliminary injunction is sought against government. Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006). The District Court held, and Plaintiffs concede, that Plaintiffs must meet this higher standard. II. Irreparable Harm
The irreparable harm inquiry need not detain us long. Noting a line of authority holding that deprivation of mandated educational services constitutes irreparable harm, the District Court held that Plaintiffs satisfied the first prong of the preliminary injunction test. We see no reason to disturb that finding, particularly where, as here, Defendants have not challenged it on appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding issues not raised in appellate brief are abandoned). III. Likelihood of Success on the Merits
A. Substantial Compliance
10

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 11 of 18 PageID #: 965
The IDEA contains a substantial compliance provision authorizing the Secretary of Education to, inter alia, withhold further payments pursuant to the Act if she determines the state has failed to comply substantially with the provisions of the Act. 20 U.S.C.A. § 1416(e)(3) (West Supp. 2005); see also County of Westchester, 286 F.3d at 153 (noting the Secretary of Education was granted the power to enforce the IDEA and citing former § 1416). Relying on that provision, the District Court ruled Plaintiffs could not succeed on the merits of their claim without demonstrating that Defendants did not substantially comply with the provisions of the IDEA. This was error.
It is by now well-settled that the IDEA confers upon disabled students the right to a free appropriate public education. See Honig, 484 U.S. at 310 (“Congress did not content itself with passage of a simple funding statute. . . . [T]he [Act] confers upon disabled students an enforceable substantive right to public education in participating States . . . and conditions federal financial assistance upon a State’s compliance with the substantive and procedural goals of the Act.”); Smith v. Robinson, 468 U.S. 992, 1010 (1984) (“Congress made clear that the [Act] is not simply a funding statute. The responsibility for providing the required education remains on the States. . . . [T]he Act establishes an enforceable substantive right to a free appropriate public education.”).9
It is also clear that the right to a free appropriate public education is afforded to each disabled child as an individual. See, e.g., 20 U.S.C. § 1419(b) (providing that a state must “make[] a free appropriate public education available to all children with disabilities, aged 3
9 Both Honig, 484 U.S. 305, and Smith, 468 U.S. 992, refer to the “Education of the Handicapped Act” or “EHA,” the title of the Act before it was amended by Congressional enactment of the IDEA in 1991.
11

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 12 of 18 PageID #: 966
through 5, residing” within the state in order to be eligible for preschool grants under the Act (emphasis added)); id. § 1412(a)(4) (requiring states to “develop[], review[], and revise[] [an IEP] for each child with a disability” (emphasis added)); Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 68 (1999) (noting the purpose of the Act was to “‘assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs’” (quoting former 20 U.S.C. § 1400(c), now codified as 20 U.S.C. § 1400(d)(1)(A)) (emphasis added)); Marie O. v. Edgar, 131 F.3d 610, 620 (7th Cir. 1997) (“It is clear that Congress intended to require the states to undertake specific and concrete obligations to eligible individuals in exchange for the federal funds granted under [the IDEA].” (emphasis added)).
The Supreme Court’s discussion of a provision similar to § 1416(e) in Blessing v. Freeston, 520 U.S. 329 (1997), makes clear that the substantial compliance standard cannot be applied to Plaintiffs’ claims to enforce the individual rights conferred by the Act. That provision, 42 U.S.C. § 609(a)(8), required participating states to “substantially comply” with Title IV-D of the Social Security Act. Blessing, 520 U.S. at 335. A group of mothers whose children were eligible to receive services under Title IV-D sued the director of Arizona’s child support agency pursuant to § 1983, claiming they had an enforceable individual right to have the State’s program “substantially comply” with the provisions of Title IV-D. Id. at 332-35. The Court held that “[f]ar from creating an individual entitlement to services, the [substantial compliance] standard is simply a yardstick for the Secretary to measure the systemwide performance of a State’s Title IVD program. Thus, the Secretary must look to the aggregate services provided by the State, not to whether the needs of any particular person have been satisfied.” Id. at 343. Because “the
12

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 13 of 18 PageID #: 967
requirement that a State operate its child support program in ‘substantial compliance’ with Title IV-D was not intended to benefit individual children and custodial parents” the provision did not create a federal right and, therefore, was not enforceable via § 1983. Id.10
The Supreme Court’s analysis of § 609(a)(8) applies to § 1416(e). The “complies substantially” standard set forth in § 1416(e) is the yardstick by which the Secretary of Education determines whether a state will receive federal funding under the Act. In contrast, access to a “free appropriate public education” is a right that the IDEA guarantees to individual disabled children. Unlike the plaintiffs in Blessing, moreover, Plaintiffs in this case have not sued to enjoin Defendants to substantially comply with the provisions of the IDEA. Rather, they seek a free appropriate public education, a service participating states are obliged to provide according to the IDEA’s clear statutory language. See Marie O., 131 F.3d at 620. With respect to that obligation, the IDEA does not simply require substantial compliance on the part of participating states; it requires compliance. See id. at 620-21.
Morever, Plaintiffs’ right to a free appropriate education is unaffected by the fact that they have chosen to assert their claim in a class action pursuant to Fed. R. Civ. P. 23. The Federal Rules of Civil Procedure “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). Had a single eligible student brought an action claiming that a systemic failure had
10 The parties do not dispute that, unlike Title IV-D of the Social Security Act at issue in Blessing, the IDEA creates rights in favor of disabled children and their families enforceable through § 1983. See Taylor v. Vt. Dep’t. of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2002); Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987); see also Marie O., 131 F.3d at 622; W.B. v. Matula, 67 F.3d 484, 493-94 (3d Cir. 1995); Digre v. Roseville Sch. Indep. Dist. No. 623, 841 F.2d 245, 249-50 (8th Cir. 1988). But see Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir. 2000); Sellers v. Sch. Bd., 141 F.3d 524, 529-32 (4th Cir. 1998).
13

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 14 of 18 PageID #: 968
deprived him of his right to a free appropriate public education, Defendants could not defeat his claim by establishing that they provide such access to a substantial number of eligible students. Substantial compliance can therefore serve as no defense here. Because substantial compliance is not the appropriate yardstick by which to measure the extent of Defendants’ obligation to Plaintiffs under the IDEA, it is not the appropriate standard by which to evaluate Plaintiffs’ likelihood of success on the merits of their claim.
B. As Soon As Possible To conclude the District Court employed the wrong standard does not settle whether Plaintiffs have established a clear or substantial likelihood of success on the merits of their claim and are thus entitled to a preliminary injunction. Plaintiffs appear to claim that their right to a free appropriate public education entitles them to have their IEPs implemented immediately, or at least within 30 days, after their IEPs are developed. Amend. Compl. at ¶ 140.11 We disagree. The term “free appropriate public education” is defined in part as “special education and related services that . . . are provided in conformity with the individualized education program required under section 1414(d) of this title.” 20 U.S.C. § 1401(8)(D). Section 1414(d) does not provide a time frame for implementing an IEP after its development, but federal regulations require that an IEP be implemented “as soon as possible” after the requisite IEP meetings. 34 C.F.R. § 300.342(b)(1)(ii). This Court has yet to determine whether a federal regulation,
11 Plaintiffs’ argument about the correct time frame for the implementation of IEPs is contradictory. In their opening brief, Plaintiffs state that the “district court properly held that federal law requires ‘immediate’ implementation of IEPs.” In their reply brief, Plaintiffs state that the “district court held correctly that IEPs must be implemented ‘as soon as possible’ after the IEP meetings.” Apparently based upon their reading of New York State regulations, Plaintiffs also assert a “30-day standard” for implementing IEPs. Amend. Compl. at 34.
14

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 15 of 18 PageID #: 969
standing alone, can create a right enforceable via § 1983. See Rodriguez v. City of New York, 197 F.3d 611, 617 (2d Cir. 1999) (assuming arguendo that Medicaid regulations can create a right enforceable under § 1983); King v. Town of Hempstead, 161 F.3d 112, 115 (2d Cir. 1998) (per curiam) (noting the issue, but declining to resolve it); see also Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 437 (1987) (O’Connor, J., dissenting) (describing as “troubling” the question of whether regulations alone can create a federal right enforceable under § 1983). Although the circuits are divided on the question, the majority have determined that where a regulation’s enforcing statute confers no federal right, the regulation alone cannot create a right enforceable under § 1983. Compare Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir. 2006) (holding a federal regulation alone cannot create a right enforceable through § 1983);12 Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir. 2003) (holding “regulations cannot independently create rights enforceable through § 1983"); S. Camden Citizens in Action v. New Jersey Dep’t of Envtl. Prot., 274 F.3d 771, 790 (3d Cir. 2001) (same); Harris v. James, 127 F.3d 993, 1008 (11th Cir. 1997) (same); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987) (same); with Samuels v. District of Columbia, 770 F.2d 184, 199 (D.C. Cir. 1985) (holding a federal regulation can create a federal right enforceable via § 1983).
We need not address the question here because § 300.342(b)(1)(ii), standing alone, does not create a federal right. Instead, it is the IDEA that creates the right to a free appropriate public
12 In Loschiavo v. City of Dearborn, 33 F.3d 548, 553 (6th Cir. 1994), the Sixth Circuit held that federal regulations can create federal rights enforceable via § 1983. In Johnson, however, the Court reiterated its conclusion in Caswell v. City of Detroit Hous. Comm’n, 418 F.3d 615, 618 (6th Cir. 2005), that its holding in Loschiavo has been “cabined” by Supreme Court jurisprudence and “the rule . . . that a federal regulation alone may create a right enforceable through § 1983, is no longer viable.” Johnson, 446 F.3d at 629.
15

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 16 of 18 PageID #: 970
education enforceable through § 1983. Section 300.342(b)(1)(ii) merely defines the scope of that right with respect to the requisite time frame for implementing an IEP. See Wright, 479 U.S. at 430-32 (low-income housing tenants could maintain a suit under § 1983 for alleged violations of the rent ceiling provision of the Housing Act of 1937 together with its implementing regulations); see also S. Camden Citizens, 274 F.3d at 783 (“[T]he Wright Court located the alleged right in the statutory provision and then relied upon the implementing regulations to define and interpret that right.”); Harris, 127 F.3d at 1009 (reading Wright to indicate “that so long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further defines or fleshes out the content of that right, then the statute—in conjunction with the regulation—may create a federal right as further defined by the regulation” (internal quotation marks omitted)).
Section 300.342(b)(1)(ii), however, requires only that IEPs be implemented “as soon as possible,” not “immediately,” or within 30 days, as Plaintiffs assert. In 1997, Congress amended various parts of the IDEA. Pub. L. No. 105-17, 111 Stat. 37. The Secretary of Education subsequently published a notice of proposed rulemaking in the Federal Register to amend certain portions of the regulations governing the IDEA. 62 Fed. Reg. 55026 (Oct. 22, 1997). The notice invited comments on the proposed regulatory changes. Id. With respect to § 300.342, several commentators stated that the terms “as soon as possible” (in the regulation itself) and “undue delay” (in the accompanying commentary) were “not meaningful” and requested that the Secretary define or clarify those terms. 64 Fed. Reg. 12406, 12579 (Mar. 12, 1999). Commentators also recommended that the Secretary impose an “outside timeline,” such as 15 days, for the implementation of IEPs following the meetings. Id. The Secretary declined these
16

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 17 of 18 PageID #: 971
suggestions, stating it “would not be appropriate to add an outside timeline under § 300.342(b) for implementing IEPs, especially when there is not a specific statutory basis to do so.” Id. Nevertheless, the Secretary commented that “with very limited exceptions” IEPs “should be implemented without undue delay following the IEP meetings.” Id. The Secretary listed the following examples of “situations” that may warrant “a short delay”:
(1) when the IEP meetings occur at the end of the school year or during the summer, and the IEP team determines that the child does not need special education and related services until the next school year begins[] or (2) when there are circumstances that require a short delay in the provision of services (e.g., finding a qualified service provider, or making transportation arrangements for the child). Id. The Secretary cautioned that: If it is determined, through the monitoring efforts of the Department, that there is a pattern o[r] practice within a given State of not making services available within a reasonable period of time (e.g., within a week or two following the meetings described in § 300.343(b)), this could raise a question as to whether the State is in compliance with that provision, unless one of the exceptions noted above applies. Id. Based on this commentary, we conclude that § 300.342(b)(1)(ii) means what it says: States must implement a student’s IEP “as soon as possible” after it has been developed. In other words, Plaintiffs’ right to a free appropriate public education requires that their IEPs be implemented as soon as possible. “As soon as possible” is, by design, a flexible requirement. It permits some delay between when the IEP is developed and when the IEP is implemented. It does not impose a rigid, outside time frame for implementation. Moreover, the requirement necessitates a specific inquiry into the causes of the delay. Factors to be considered include, but are not limited to: (1) the length of the delay, (2) the reasons for the delay, including the availability of the mandated educational services, and (3) the steps taken to overcome whatever
17

Case 1:03-cv-02489-DGT-RLM Document 218-2 Filed 10/26/06 Page 18 of 18 PageID #: 972
obstacles have delayed prompt implementation of the IEP. Nonetheless, just because the assoon-as-possible-requirement is flexible does not mean it lacks a breaking point. “It is no doubt true that administrative delays, in certain circumstances, can violate the IDEA by depriving a student of his right to a ‘free appropriate public education.’” Grim, 346 F.3d at 381.13
Because the District Court applied the wrong standard in evaluating Plaintiffs’ motion for preliminary injunction, we vacate its denial of that motion and remand for reconsideration utilizing the proper standard. See, e.g., Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins., Co., 302 F.3d 18, 34 (2d Cir. 2002); Horgan v. Macmillan, Inc., 789 F.2d 157, 158, 164 (2d Cir. 1986). It will obviously be helpful if the District Court can now combine the preliminary injunction with the merits and adjudicate the entire controversy. See Fed. R. Civ. P. 65(a)(2).
CONCLUSION For the reasons set forth above, we vacate the District Court’s order denying Plaintiffs’ motion for a preliminary injunction and remand the case for further proceedings consistent with this opinion.
13 Plaintiffs also contend that Defendants are in violation of New York State’s regulations, 8 N.Y.C.R.R. §§ 200.4(e)(1)(i) and 200.16(e)(1), which Plaintiffs claim require the implementation of IEP-mandated services within 30 days. Defendants dispute this interpretation of the regulations. Even if, arguendo, State regulations impose a 30-day time frame, and Defendants have violated that time frame, such a violation would only violate federal law if Defendants failed to implement Plaintiffs’ IEPs “as soon as possible” as required by § 300.342(b)(1)(ii). In addition, the amended complaint does not invoke supplemental jurisdiction under 28 U.S.C. § 1637(a), and there is no state law cause of action pleaded in the amended complaint. Moreover, this would be an inappropriate case for supplemental jurisdiction. The State and City regulatory schemes are intricate and difficult to interpret. Any claim for relief based solely on State or City law is best left to the State courts.
18

 
 Case 1:03-cv-02489-DGT-RLM Document 238 Filed 03/05/07 PageJ1EoJf)N1 YPa/g/e3I/D(N#Y: 1021
03-c¥- 2.'f~1
United States Court of Appeals TRAGfJ<
FOR THE SECOND CIRCUIT
JUDGMENT
At a stated Tenn of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 12"' day of September, two thousand and six.

Before:

Hon. Jon O. Newman, Hon. Guido Calabresi, Hon. Peter W. Hall,
Circuit Judges.

Docket No. 04-2542-cv

·,.2

D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next

Friend, V.S.; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on b~lf of'ditl others

similarly situated,

';<.n 5

C;(f)·,.-,

~

>\"'I--':::'~

.~

Plaintiffi-AppeJ.lants, .;

'~:~f ~~ :=~\ cJ1

v.

NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; JOci:.r<:hliIN; Aii;ELO
GIMONDO, DR., Superintendent, Community School District 30; NELLY REAL-KORB, Chairperso6;,<§bmmime on
Preschool Special Education District 30; RICHARD P. MILLS, Commissioner of the New York Stale Edu<i?ation
Department; CITY OF NEW YORK; JOE BLAIZE, Chairperson, CPSE District 29; BETH MARINO, Chairperson, CPSE
District 25 and MICHELLE FRATTl, Superintendent, Community School District 25,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of New York.

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was argued by counsel.

On consideration whereof, it is hereby ORDERED, ADJUDGED and DECREED that the judgment of said District Court be and it hereby is VACATED and REMANDED for further proceedings in accordance with the opinion of this Court.

I~Is·su·e·d~a·S~N1~~·d~a·te·:"·I""""""iI••
2.-2~-O·t

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

oi:bwy '¥d;j"cl

otions Staff Attorney

1/1

A 'rRUE GQPY ---

Thomas W. Asreen, A.cting Clerk

~

 
 Case 1:03-cv-02489-DGT-RLM Document 261 Filed 12/28/07 Page 1 of 4 PageID #: 1126

UNITED STATES DISTRICT COURT EASTERN DlISTTRR1ICT OF NEW YORK ----------------------------------------------------------------------- ]{

FILED
IN CLERKS OFFICE N'Y
* DEC2ffr,~· * U.s. OISTp.;.-:1 COUR'[ £,0. •

D.D., a minor, by and through his Parent and Next Friend, V.D.; A.c., a minor, by and through his Parent and Next Friend, V.s; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated,
Plaintiffs,

STIPULATION AND ORDER OF SETTLEMENT AND DISCONTINUANCE

-against-

03 CV2489 (DGT)(RLM)

NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, Chancellor of New York City Schools; DR. ANGELO GIMONDO, Superintendent, Community School District 30; NELLY REAL-KORB, Chairperson, Committee on Preschool Special Education (CPSE) District30; MICHELLE FRATIl, Superintendent, Community School District 25; BETH MAARlINNOO, Chairperson, CPSE District 25; MICHAEL A. JOHNSON, Superintendent, Community School District 29; JOE BLAIZE, Chairperson, CPSE District 29; RIlCHARD P. MILLS, Commissioner of the New Yoark State Education Department; THE CITY OF NEW YORK,
Defendants.

----------------------------------------------------------------------- ]{

WHEREAS, individual plaintiffs D.D. (by V.D.) and A.C. (by V.S.) allege that defendants New York City Board of Education, New Yoark City Department of Education ("DOE"), Joel Klein, Angelo Gimondo, Nelly Real-Korb, Michelle Fratti, Beth Marino, Michael A. Johnson, Joe Blaize, and the City of New York (the "City defendants") have violated plaintiffs' rights to a free appropriate preschool education that meets their individual needs as guaranteed by federal and State statutes and the regulations promUlgated thereunder;
WHEREAS, by Stipulation and Order dated March 12, 2007, the parties to the above-captioned action resolved all claims brought by the individual plaintiffs on behalf of the ceI1ified class;

Case 1:03-cv-02489-DGT-RLM Document 261 Filed 12/28/07 Page 2 of 4 PageID #: 1127
WHEREAS, the Stipulation dated March 12, 2007, at paragraph "34," states "This Stipulation and Order does not resolve the damage claims or attorneys' fees/costs of the named, individual plaintiffs.";
WHEREAS, the sole remaining claims are those brought by individual plaintiff's D.D. and A.C.;
WHEREAS, defendants have denied any' and all liability arising out of the allegations set forth in the Complaint; and
WHEREAS, the parties wish to resolve the issues in this action without further proceedings and without any defendant admitting any fault or liability;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
J. In consideration of the foregoing, the defendants hereby agree to pay plaintiffs, by checks made payable to (I) "Emery Celli Brinkerhoff & Abady LLP, as attorney for plaintiff D.D.," the sum of Forty Five Thousand Dollars ($45,000.00), and (2) "Emery Celli Brinkerhoff & Abady LLP, as attorney for plaintiff A.C.," the sum of Thirty Thousand Dollars ($30,000.00), in full satisfaction of all claims that were or could have been raised in this action or in any related proceeding or action, including all claims for costs, expenses and attorneys' fees.
2. Plaintiffs agree that the payments set forth in paragraph "J" above shall be used solely for the purpose of obtaining compensatory educational services.
3. In consideration for the payments set forth in paragrapb "J" above, plaintills agree to dismissal of all the claims against all defendants, and to release all defendants, their successors or assigns, and all present Or former officials, employees, representatives and agents ofthe New York City Board of Education aJk/a the New York City Department of Education; the New York State Education Department; and The City of New York from any and all liability, claims, and/or rights of action arising from the allegations set forth in the Complaint herein, whether known or unknown, which they had, may now have, or may have in the future, including all claims for costs, expenses and attorneys' fees.
-2 -

Case 1:03-cv-02489-DGT-RLM Document 261 Filed 12/28/07 Page 3 of 4 PageID #: 1128
4. Plaintiffs shall execute and deliver to defendants' attorneys all documents necessary to effectuate this settlement, including, without limitation, a release based on the terms of paragraph "2" above and an Mfidavit of No Liens, being substantially in the fonn annexed hereto as Exhibit B. The payments set forth above is subject to and conditioned on delivery of such documents to defendants' undersigned attorneys.
5. Plaintiffs will have the sole responsibility to satisfY any lien or claim, whether known or unknown, asserted against the settlement proceeds Or arising from the settlement. If any lien, claim or action is brought against any defendant arising from the settlement or asserted against the settlement proceeds, plaintiffs will defend, indemnify and hold harmless all defendants and the related entities, agents, servants, faculty, trustees and employees of each of them.
6. Plaintiffs make no claim of or for vicarious liability against any other party, whether named or unnamed, for any acts or omissions of the defendants or their related entities, agents, servants, faculty, and employees alleged in the complaint.
7. Nothing contained herein shall be deemed to be an admission by any of the defendants or any of their employees of any oflhe plaintiffs' allegations, nor an admission by the defendants of any liability or that they have in any mrumer or way violated plaintiffs' rights or the rights of any other person or entity, as defmed in the constitutions, statutes, ordinances, charters, by-laws, rules or regulations of the United States, the State ofNew York, or the City, or any other rules, regulations or bylaws of any department or subdivision of the City.
8. This Stipulation shall not be admissible in, nOr is it related to, any other litigation or settlement negotiations.
9. Plaintiffs and their counsel may not use or reference this settlement for any purpose other than to enforce its terms.
10. Nothing contained herein shall be deemed to constitute a policy or practice of the City or State.
-3 -

Case 1:03-cv-02489-DGT-RLM Document 261 Filed 12/28/07 Page 4 of 4 PageID #: 1129

11. This Stipulation and Order contains all the terms and conditions agreed upon by the parties hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation regarding the subject matter of the instant action and appeal shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein, except for the Stipulation and Order dated March J2, 2007, which is unaffected by this Stipulation and Order of Settlement of Discontinuance.
12. All payments required herein under paragraphs '']'' shall be made within ninety (90) days of the day this agreement is so-ordered by the Court. If such sum is not paid within said time frame, then interest shall begin to accrue on the outstanding principal baJance on the ninety-first (91 ") day at a rate set forth in 28 V.S.c. §1961.

Dated:

New York, New York
December:20, 2007

Ilann M. Maazel Emery Celli Brinkerhoff & Abady LLP Attorneys for Plaintiffs 545 Madison Avenue, 3rd Floor New York, New York 10022 (212) 763-5000

New York, New York December~, 2007
MICHAEL A. CARDOZO

By:

By:

]JallTI M. MaazeJ, Esq. OM 57)Y )

s/SDOaOviRdDTErRaEgDe:r
~-'-~~",~~----~-
Hon. David G. Trager United States District Judge
Date: December ..t.J..., 2007

Martin Bowe: Esq. (MB 8042) Assistant Corporation Counsel

-4 -

 
 Case 1:03-cv-02489-DGT-RLM Document 262 Filed 07/14/08 Page 1 of 3 PageID #: 1130

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------x
D.O., a minor, by and through his Parent and Next Friend, V.D.; et al.,
Plaintiffs,
against
NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; et al.,

FILED
IN CLERK'S OFFICE
* * U.S. DISTRICT COURT E.D.N.Y. JUL 14 2008
BROOKLYN OFFICE
STl::l?lJLATION
ANI:'_J?RDER
03 CV 2489 (DGJ') (RLM)

Defendants.
----------------------------------------------------------x
WHEREAS, a Stipulation and Order ("StipulatL):-.c") was entered

by this Court on April 25, 2007, resolving claims J:y the

plaintiff-class asserted against State defendant Itichard P.

Mills, the Commissioner of Education and chief eXE,c:utive officer

of the State Education Department,and defendants New York City

Board of Education, New York City Department of Education, Joel

Klein, Angelo Gimondo, Nelly Real-Korb, Michelle !'ratti, Beth

Marino, Michael A_ Johnson, Joe Blaize, and the Ci:y of New York;

and WHEREAS, the Stipulation provided that "plainU.ffs shall

also be entitled to an award of reasonable fees an~l expenses to monitor compliance with the terms of this Stipulat.io:~;" and

WHEREAS, in consideration of plaintiffs' requ,"st for fees

and expenses for compensable monitoring activities incurred

between April 26, 2007 and April 30, 2008;

1

-- --- --- --- --- ---~ --- --- --- --- --

Case 1:03-cv-02489-DGT-RLM Document 262 Filed 07/14/08 Page 2 of 3 PageID #: 1131
IT IS HEREBY STIPULATED AND AGREED, by anc. among the undersigned that:
1. In full satisfaction of any and all cl.aims by plaintiffs in this action for attorneys' fees a~d expenses incurred between entry of the Stipulation on Ap::il 25, 2007 and April 30, 2008: (i) Defendant City of New York 1lhall pay to plaintiffs' counsel, Emery Celli Brinckerhoff & Abady LLP, the sum of $2,000.00, and (ii) the State of New York shall pay to plaintiffs' counsel, Emery Celli Brinckerhoff & A]:ady LLP, the sum of $1,000.00.
2. Payments of the sums described in para9raph 1 shall be made payable to the order of Emery Celli Brinckerroff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, New York 10019.
3. The payment by the State of New York referenced in subparagraph l(ii) is subject to the approval of all appropriate state officials in accordance with N.Y. Pub. Off. Law § 17. In the event that the payment by the State of New Yc:c:, referenced in subparagraph l(ii) is not approved, plaintiffs rna:, move for reasonable fees and costs as provided in the Stipulation.
4. In the event that the payment reference:l in subparagraph l(ii) is not made by the ninetieth day after receipt by the New York State Office of the Attorney Gene~al of a "so ordered" copy of this Stipulation and Order, interest on the amount referenced in subparagraph 1 (ii) which is rDt: paid by the
2

Case 1:03-cv-02489-DGT-RLM Document 262 Filed 07/14/08 Page 3 of 3 PageID #: 1132

ninetieth day shall begin to run on the ninety-::irst day at the
statutory rate pursuant to 28 U.S.C. § 1961.
Dated: New York, New York Ju1y:L.J 2008

8M8RY C8LLI BRINCK8RHOFF & ABADY LLP Attorneys for Plaintiffs By:

ANDREW M. CUCJ.VO Attorney Gen,=:r:a1 of the
State of New York Attorney for J2!=fendant Mills By:

ILANN MAAZ8L, 8SQ. 75 Rockefeller Plaza 20th Floor New York, New York 10019 (212) 763-5000

ST8V8N L. BAN.'C3 Assistant Att,}rney General 120 Broadway- 24th Floor New York, New York 10271 (212) 416-862l

MICHA8L A. CARDOZO Corporation Counsel of the
city of New York
BYppN:UM Attorney for City Defendants
MART'~OW~
Assistant orporatlon Counsel 100 Church Street New York, New York 10007 (212) 788-0878

SO ORDERED:

s/DGT
HUNDRABLE DAVID G. ~G8R United States District Judge

3

 
 Case 1:03-cv-02489-DGT-RLM Document 264 Filed 12/28/11 Page 1 of 3 PageID #: 1136

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - .. - - - - - - -- -. - - .... - - - .. - - - .. - - - ., - - - - - .. - X
D.D., a minor, by and through his Parent and Next Friend, V.D.; et al.,
Plaintiffs,
against
NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; et al.,
Defendants.
X - - -- - - - __ - - - - - -- - - - .- ~ - -- _:·_r:_. - ___:_ "":'" '.....:.- - - -. "'!> - - ~

STIPULATION AND ORDER 03 CV 2489 (DGT) (RLM)

WHEREAS, a Stipulati.on and Order ("Stipulation") was entered by this Court on April 25, 2007, r.esol\~iI1g c:laims by the plaintiff-class asserted against State defendant Richard P. Mills, the Commissioner of Education and chief executive officer of the State Education Department, and defendants New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real-Korb, Mi,cl1e1le Fratti, Beth
:: \ t..\ ,:' ,'"I
Marino, Michael A. Johnson, Joe B,laize, , ant::l'"' ·the City of New York; and

WHEREAS, the Stipulation provided that "plaintiffs shall

also be entitled to an awa'rd of reasonable' fees and expenses to

r

• '\! ~

:

monitor compliance with the terms of t~is Stipulation;"

WHEREAS, the Stipulation provided:for'a "Stipulation Period," during which defendants were ~bligated to provide

1

Case 1:03-cv-02489-DGT-RLM Document 264 Filed 12/28/11 Page 2 of 3 PageID #: 1137

written reports to plaintiffs' counsel concerning their

compliance with the terms of the Stipulation, which expired on

December 31, 2009; and

,

I

WHEREAS, in consideration of plaintiffs' request for fees

and expenses for compensable monitoring activities incurred

between May 11 2008 and December 31 1 2009;

IT IS HEREBY STIPULATED AND AGREED, by and among the

undersigned that:

1. In full satisfaction of any and all present or future

claims by plaintiffs in this action for attorneys I fees and

, I

expenses: (i) Defendant City' of New York shall pay to plaintiffs=

, >,

'~I

I

counsell Emery Celli Brinckerhoff & Abady LLP I the sum of

$1,434.60 1 and (ii) the state of New York shall pay to plaintiffs= counsell Emery' Celli ,'Brinb~erhoff, & Abady LLP I the

sum of $717.30.

·1 ," "

2. Payments of the sums desC?ribed 'in, paragraph 1 shall be

made payable to the order of Emery Celli Brinckerhoff & Abady

LLP I 75 Rockefeller Plaza, 20th Floor l New York l New York 10019. 3. The payment by the State of New York referenced in

subparagraph l(ii) is subject to the app~oval of all appropriate

, '

, \

• I,. I:.: l '

state officials in accordance wi~~ N<~:', .~~~.' ~.'~ff. Law § 17. In

t. h

,II I

1 , '/1., ••

the event that the payment by the' Stat'e of 'New York referenced in

subparagraph l(ii) is not approveq, plaintiffs may move for

reasonable fees and costs ,as provided ip the Stipulation.
. 't '. ~I \ I

2

Case 1:03-cv-02489-DGT-RLM Document 264 Filed 12/28/11 Page 3 of 3 PageID #: 1138

4. In the event that the payment referenced in subparagraph l(ii) is not made by the ninetieth day after receipt by the New York State Office of the Attorney General of a "so ordered" copy of this Stipulation and Order, interest on the amount referenced in subparagraph'l(ii) w~i~~ is not paid by the
ninetieth day shall begin to run,: 6n 'th~, ~'i~.~t~:"'first day at the , '
statutory rate pursuant to 28 U.S.C. § 1961.

Dated: New York, New York December 21, 2011

EMERY CELLI BRINCKERHOFF & ABADY LLP Attorneys for Plaintiffs By:
~~E:!~T.h'75 Rockefeller Plaza 20th Floor New York, New York 10019 (212) 763-5000

ERIC T. SCHNEIDERMAN

Attorney General of the

State of New York

Attorney.for Defendant Mills

_~ --"",:~_. By: __

_ _-...;.t::..,..J-!'l.I/J.P II

STEVEN L. BANKS

Assistant Attorney General

120 Broadway - 24th Floor

New York, New York 10271

(212)" 4.167-8621

MICHAEL A. CARDOZO

I.: t

;. ': :

I ~"t.r I::, t

Corporation Counsel of the

City of New York

Attorne for Ci Defendants

By:

Assistant Corporation Counsel 100 Church Street New York, New York 10007 (212) 788-0878

SO ORDERED:

S/Roanne L. Mann United States Magistrate Judge

3
..

 
 NYC LAW DEPARTMENT Fax: 2127880940
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- )(

ORIGINAL

D.O., a minor, by and through his
Parent and Next Friend, V.D.; A.c.,
a minor, by and through his Parent
and Next Friend, V.S, individually and on
behalf of aU otherS similarly situated,
Plaintiffs,
-against-
NEW YORK CITY BOARD OF EDUCATION;. NEW YORK CITY DEPARTMENT OF. EDUCATION; JOEL KLEIN, Chancellor of
New York City Schools; DR. ANGELO
GWONDO, Superintendent, Community School District 30; NELLY REAL-KORB, Chairperson, Committee on Preschool Special Education (CPSE) District 30; MICHELLE PRATTI, Superintendent, Community School District 25; BETH MARINO, Chairperson, CPSE District 25; MICHAEL A. JOHNSON, Superintendent, Community School District 29; JOE BLAIZE, Chairperson, CPSE District 29; RICHARD P. MILLS, Commissioner of the New York State Education Department; THE CITY OF NEW YORK,

STIPULATION AND ORDER FOR NOTICE TO THE PLAINTIFF CLASS

03 CV 2489

(pGT)(RLM)

FILED

IN OLBlK'S OI'FICE
* V.8.DIS11fl1CT COU'RT. e.oN.V.
::.li MAR.30 2007

.BOOOKlVN OFFl'CE

Defendants.

---------------------------------------..------------------------------- x

WHEREAS, on March 12, 2007, the parties to the above-mentioned action (the "Action") entered into a Stipulation and Order of Settlement (the "Stipulation''), which sets forth the tenns and conditions for the proposed settlement of all claims seeking injunctive, declaratory or other equitable relief alleged in the Amended Complaint, a copy of which has been presented to this Court pursuant .to Rule 23(e) ofthe Federal Rules of Civil Procedure; and

NYC LAW DEPARTMENT Fax:2127880940

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WHEREAS, the Stipulation is subj eet to the approval of this Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure upon a finding that the Settlement is fair, reasonable and adequate; and
WHEREAS, before this Court may approve the Stipulation it must direct that notice be provided, pursuant to Rule 23(e)(I)(B), in a reasonable manner to all Class Members who would be bound by the Stipulation; and
WHEREAS, pursuant to this Court's March 30, 2004 Order, this action was certifi~ as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2); and
WHEREAS, the parties will seek the Court's approval of the Stipulation after
notice to the Plaintiff Class and a hearing pursuant to Federal Rule of Civil Procedure 23(e); and WHEREAS, the parties approve of and request that the Court find that the form of
Notice attached hereto, and the manner of notification to class members, complies with Rule
23(e); and WHEREAS, the Court has read and considered the Stipulation, and the parties to
the Stipulation have consented to the entry of this Order; NOW THEREFORE, IT IS HEREBY ORDERED, thisJ;.day ofMarch, 2007,
that: 1. A heanng (the "Fairness Heating") is hereby scheduled to be held, pursuant to Federal Rule of Civil Procedure 23(e), before the Court at the United States Courthouse, 225 Cadman Plaza East, Brooklyn New York, on April 24, 2007 at 10 a.m., after which the Court shall determine whether the Stipulation shall be approved as a settlement of this class action. The Court may approve the proposed settlement without further notice of any kind to the Plaintiff Class, beyond that provided in this Order and the attached Notice [Q the Plaintiff Class. The
-2-

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Court may adjourn or continue the; Fairness Hearing to a new date without further notice to the Plaintiff Class, except that if the Fairness Hearing is adjourned or continued any Class Member who appeals on the original date or otherwise COntacts the Court will be advised of the new date.
2. On or before April 13,2007, the parties shall file with the Court submissions in support of the settlement.
3. No later tban March 23, 2007, the New York City Department of Education shall mail by first class mail copies of the Notice to the Plaintiff Class to the parents of all preschool children in New York City who have an IEP dated March 12, 2007 or earlier, but are not receiving all of
the services set forth in the IEP, including all preschool children currently on the "PN" or "PNA"
list.
4. The Court finds that the fonn and substance of the Notice to the Plaintiff Class, as well as the manner ofproviding notice to Class Members set forth in this Order and Stipulation, are reasonably calculated to apprise Class Members ofthe pendency ofthis action, the existence and terms of the proposed settlement, Class Members' rights under the Stipulation, and Class Members· rights to comment on and Object to the proposed settlement. The Court further [mds that such notice is reasonable and shall constitute due, adequate and sufficient notice to all persons entitled to receive notice.
5. The Court will consider Class Members' written comments andlor objections to the proposed settlement only ifsuch comments andior objections, along with all supporting
-3-

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materials, are postmarked not later than April 17, 2007 to the Clerk of the Court, United States
District Court, 225 Cadman Plaza East, Brooklyn, New York 11201. The Court will promptly
provide copies of any comments andlor objections to the following counsel for the parties to the
Stipulation.
Ilann M. Maaze~ Esq.
Emery Celli Brinckerhoff & Abady LLP
75 Rockefeller Plaza, 20'h Floor
New York, New York 10019 Tel: (212) 763-5000 Fax: (212) 763-5001
Counsel for the Plaintiff Class
Steven Banks, Esq.
Office oftche Attorney General
State ofNew York 120 Broadway, 24th Floor
New York, New York 10271
Tel:(212) 416-8621 Fax:(212) 416-6075
Counselfor Defendant Mills
Jane R. GQldberg, Esq. Office ofthe Corporation Counsel 100 Church Street, 4th Floor
New York, New York 10007
Tel: (212) 442-3229
Fax: (212) 788-0877
Counsel for all defendants except Mills
To object to the Stipulation, a Class Member may either (i) mail written objections in accordance
with the terms of this paragraph, or (ii) appear at the Faimess Hearing. If a Class Member fails
to do either (i) or (ii), that Class Member shall be deemed to have waived any objection to any
aspect of the Stipulation, absent Court order otherwise.
-4-

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6. This Order shall be of no force or effect if the settlement is not finally approved and shall
not be construed or used as an admisSion, concession or declaration by or against defendants of
any fault, wrongdoing, breach or liability, or by or against the named plaintiffs or Class Members regarding the merits of their claims or the relief requested in this Action.

-5-

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Dated:

New York, New York March 12, 2007

Ilann Maazel (1M 5724) Matthew D. Brinckerhoff (MB 3552) Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza. 20t~ Floor
New York, New York 10019
(212) 763-5000 Attorney for Plaintiffs

By:

j1~

Dann Maaze (llY15724)

ANDREW M. CUOMO
Attorney General of the
State of New York Attorney for State Defendant Mills
120 Broadway - 24th Floor New York. New York 10271
(212) 416-8621

By: Steven 1. Banks (SB 4858) Assistant Attorney General

MICHAEL A. CARDOZO
Corporation Counsel of the CilY of New York
Attorney for City Defendants Jane R. Goldberg (JG 1526) Martin Bowe (MB 8042)
100 Church Street, Room 2-194 New York, New York 10007 (212) 788-0878
By: ~~olfdbfer4g -(JG1e52 M~
Assistant Corporation Counsel
SO ORDERED:
s/David G. Trager
1i~n. David G. Trager '
--' Dated this.eJ---day of March, 2007

-6-

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------- l<

D.D., a minor, by and through his
Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next Friend, V.S, individually and on
behalf of all others similarly situated,

03 CV 2489 (DGT)(RLM)

Plaintiffs,

-against -
NEW YORK CITY BOARD OF EDUCATION;. NEW YORK CITY DEPARTMENT OF. EDUCATION; JOEL KLEIN, Chancellor of New York City Schools; DR. ANGELO GIMONDO, Superintendent, Community School District 30; NELLY REAL-KORB, Chairperson, Committee on Preschool Special Education (CPSE) District 30; MICHELLE FRATT!, Superintendent, Community School District 25; BETH MARINO, Chairperson, CPSE District 25; MICH.A.EL A. JOHNSON, Superintendent, Community School District 29; JOE
BLAIZE, Chairperson, CPSE District
29; RlCHARD P. MILLS, Commissioner of the New York State Education Department; THE CITY OF NEW YORK,

Defendants.

--------------------------------------..-------------------------------- x

NOTICE TO CLASS MEMBERS OF PROPOSED SETTLEMENT
This Notice is sent to you because you are, or may be, a member of the class whose rights are being determined in this case. This Notice will inform you of the terms of the proposed settlement of this class action, and of a court hearing to consider the fairness, reasonableness and adequacy of the settlement.
Attorneys for preschool children with Individual Education Programs (IEPs) and attorneys for the City of New York and the Commissioner of the New York State Education

NYC LAI~ DEPARTMENT Fax:2127880940

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\"".u'.:'

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Department have agreed to settle this class action lawsuit, D.D. v. New York City Board of
Education, 03 Civ. 2489 (DGT) (RLM), pending in the U.S. District Court fur the Eastem District of New York.
This class action lawsuit was filed on June 16, 2003. The class representatives claimed that they were disabled preschool children, had received IEPs, but that they did not receive all of the services required by their lEPs in a timely way. On behalf of the Plaintiff Class. the Class Representatives asked that the Court order defendants to provide an the services in plaintiffs' IEPs immediately, and in any event no later than 30 days after their IEP conferences. Defendants have denied the allegations and further deny that the Plaintiff Class is entitled to the relief sought by the Plaintiff Class.
By order dated March 30, 2004, the Court (Honorable David G. Trager) defined the Plaintiff Class as "All present and future New York City preschool students with IEPs who have not or will not timely receive all of the services required by their IEPs."
NOTICE IS HEREBY GIVEN, that the Honorable David G. Trager will hold a hearing on April 24, 2007 at 10 a.m., at the U.S. District Court, Eastern District of New York, 225 Cadman Plaza East, Courtroom 8D, Brooklyn, New York 11201, to decide if the settlement of the lawsuit on behalf of the Plaintiff Class is fair, reasonable and adequate and should be approved. lfthe Court approves the settlement, all members ofthe Plaintiff Class will be bound by its terms, and will be deemed to have released the defendants from liability for all classwide claims for injunctive or declaratory reliefthat were raised in the class action lawsuit.
IMPORTANT; This lawsuit did not ask for money for the Plaintiff Class, and the settlement does not provide money for the Plaintiff Class, except that the named plaintiffs sued for money for their own individual injuries, and those claims have not yet been resolved. If you have brOUght any individual claims that are now pending in court, or if you bring any individual claims in the future, this settlement does not address those clairm.
This Notice provides information about the settlement and about how the parents and guardians of disabled preschool children can aJlk questions, make comments, or make objections about the settlement. All written comments and/or objections must be postmarked by April 17,2007.
This Notice is given pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order ofthe Court. The Plaintiff Class and the disabled preschool children who started the lawsuit have been represented throughout the litigation by the finn Emery Celli Brinckerhoff & AbadyLLP.
SUMMARY OF THE AGREEMENT: The key provisions of the agreement signed by the attomeys to settle the class action lawsuit (the "Stipulation'') are as follows:
Extension of Early Intervention: In 2007, the State Education Department will pursue a legislative proposal to pennit parents to keep their children in Early Intervention until the August 31 after their child turns three, so that children are not required to leave Early

CaseNY1C:0L3A-Ic~ vD-E0P2A4R8TM9E-DNTGT-RLFMax:~D'1o2c7u88m09e4n0t 241

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Intervention on their third birthday, but instead could begin the preschool program in early September.
Expansion of Class Size Mid-Year: The State Education Department will submit a proposed regulation to the Board of Regents to permit special classes to expand to 13 students to accorrunodate disabled preschool children waiting to get into such classes.
Outreach 10 Service Providers: Every year, the New York City Department of Education ("DOE') will mail letters to all newly-licensed speech, physical, and occupational
therapists in New York State encouraging them to work for or contract with the New
York City Department of Education.
Internal Monitoring: The DOE will provide weekly reports to Corrunittee on Preschool Special Education ("CPSE') administralOrs concerning placemen.t of disabled preschool children, establish progressive monthly benchmarks for districts, and create a corrective action plan for districts lagging behind compliance guidelines.
School Improvement Team: The DOE will create a three-person School Improvement Team to provide assistance to preschool special education staff, especially in districts lagging behind compliance guidelines.
Enhanced Technology: The DOE has created a secLlre website accessible to related service providers and school/agencies, with lists of children (with identifying infonnation redacted) and the services they require. The DOE has also created a secure website
listing student vacancies by program, class size and staffing ratio, to more easily identify
slots that can be filled by preschool children with IEPs in need of services.
UPK: The DOE will train CPSE administrators in how to use Universal Prekindergarten
to serve disabled preschool children.
Monitoring: Defendants will provide plaintiffs' counsel with annual written reports
describing their compliance with the Stipulation, and the DOE will provide annual reports concerning the total number of preschool children with rEPs who were not fully served within 30 days of the IEP conference, categorized by district and program type.
Ongoing Notice to Unserved Children: Through June 3D, 2009, parents of preschool
children who are not fully served within 30 days of their IEP conference will be infonned of this settlement and given an opportunity to speak with attorneys for the Plaintiff Class.
Attorneys' Fees: Counsel for the plaintiff class, Emery Celli Brinckerhoff & Abady LLP,
will receive $655,000 in reasonable attorneys' fees and costs for their work on this case since 2003.
Duration of StipUlation: Most provisions of the Stipulation will expire on December 31,
2009, except that a few provisions will expire at the end of the 2008-2009 school year.

NYC LAW DEPARTMENT Fax:2127880940

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Compliance with Stipulation: If attorneys for the Plaintiff Class believe that defendants have violated the Stipulation, the attorneys for the Plaintiff Class can seek to enforce the
Stipulation in federal court, but only after first attempting in good faith to resolve the
dispute without judicial intervention.
COURT APPROVAL: The settlement of this lawsuit will not become final until the members of the Plaintiff Class have had an opportunity to consider the StipUlation and to make comments
to the Court ifthey choose to do so. After that, the Court must approve the Stipulation. As described above, the Honorable David G. Trager will hold a hearing on April 24, 2007 at 10 a.m., at the U.S. District Court, Eastern District of New York, 225 Cadman Plaza East,
Courtroom 80, Brooklyn, New York 11201, to decide if the settlement of the lawsuit on behalf of the Plaintiff Class is fair, reasonable and adequate and should be approved.
If you are a member of the Plaintiff Class, YOIl have the right to object to and/or comment on the proposed settlement and to submit any slipporting materials. You may do so on your own or through an attorney ofyour choice. Your comment may be in favor of or against the proposed settlement. You may object to any aspect of the proposed settlement. To make sure your written objections and/or comments are received by the Court and considered at the hearing, YOIl MUST follow these instructions:
1. Make your comment and/or objections in writing.
2. Send your comments and/or objections in writing addressed to:
Clerk ofthe Court
u.s. District Court B.D.N.Y.
225 Cadman Plaza East Brooklyn, N.Y. ll201
Re: D.D. v. New York City Department of Education, 03 eiv. 2489
3. Mail your written comments andlor objections and any and all supporting materials postmarked no later than April 17, 2007.
4. On the top ofth" first page of your comments and/or objections, write the name and number of the lawsuit: "D.O. v. New York City Department of Education, 03 Civ. 2489."
5. Do not telephone the Court regarding this Notice. The Court clerk is not able to provide any information or advice regarding this Notice.
In the alternative, you may make a comment or objection at the Hearing to take place on April 24, 2007 at 10 a.m., at the U.S. District Court, Eastern District of New York, 225
Carlman Plaza East, Courtroom 80, Brooklyn, New York 11201.

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IF YOU DO NOT FOLLOW THESE INSTRUCTIONS, YOU SHALL WAIVE ALL RIGHTS TO COMMENT ON AND/OR OBJECT TO THE SETTLEMENT, ABSENT COURT ORDER OTHERWISE.
Any member of the PlaintiffClass who wishes to obtain additional information or a copy of the Stipulation may contact the attorneys for the PJaintiffClass:
nann M. Maazel, Esq. Matthew D. Brinckerhoff, Esq. Emery Celli Brinckerhoff& Abady LLP 75 Rockefeller Plaza, 20th Floor New Yorlc, New York 10019 Tel: (212) 763-5000

 
 Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 1 of 21
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:03−cv−02489−DGT−RLM

CLOSED

D.D. v. New York City Board of Education et al Assigned to: Judge David G. Trager Referred to: Magistrate Judge Roanne L. Mann Cause: 42:1983 Civil Rights Act
Plaintiff
D.D. a minor, by and through his parent and Next Friend, V.D.

Date Filed: 05/16/2003 Date Terminated: 04/25/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Ilann M. Maazel Emery Celli Brinckerhoff &Abady PC 75 Rockefeller Plaza 20th Floor New York, NY 10019 (212) 763−5000 Fax: (212) 763−5001 Email: imaazel@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mariann Meier Wang Emery Celli Brinckerhoff &Abady LLP 75 Rockefeller Plaza 20th Floor New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: mwang@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alba R Morales Emery Celi Brinckerhoff &Abady 75 Rockefeller Plaza 20th Floor New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: alba_raquel@yahoo.com ATTORNEY TO BE NOTICED

Plaintiff
B.T. a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated

represented by Eric Jason Hecker Emery Celli Brinckeroff &Abady LLP 75 Rockefeller Plaza 20th Floor New York, NY 10019 212−763−5000 Email: ehecker@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mariann Meier Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew D. Brinckerhoff Emery Celli Brinckerhoff &Abady PC 75 Rockefeller Plaza

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 2 of 21

20th Floor New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: mbrinckerhoff@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alba R Morales (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.C. a minor,by and through his Parent and Next Friend, V.S.

represented by Eric Jason Hecker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mariann Meier Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alba R Morales (See above for address) ATTORNEY TO BE NOTICED

Ilann M. Maazel (See above for address) ATTORNEY TO BE NOTICED

V. Defendant New York City Board of Education
Defendant

represented by Jane R. Goldberg Corporation Counsel of the City of NY 100 Church Street New York, NY 10007 (212)416−6133 Fax: (212)416−6009 Email: jane.goldberg@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin John Bowe The City of New York Law Department 100 Church Street New York, NY 10007 (212) 788−0878 Fax: (212) 788−0940 Email: mbowe@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 3 of 21

New York City Department of Education

Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joel Klein Chancellor of New York City Schools

represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Angelo Gimondo Dr., Superintendent, Community School District 30

represented by Jane R. Goldberg (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nelly Real−Korb Chairperson, Committee on Preschool Special Education (CPSE) District 30

represented by Jane R. Goldberg (See above for address) ATTORNEY TO BE NOTICED

Defendant
Richard P. Mills Commissioner of the New York State Education Department

represented by Jane R. Goldberg (See above for address) ATTORNEY TO BE NOTICED

Steven Leon Banks NYS Office of the Attorney General 120 Broadway, 24th Floor New York, NY 10271 (212)416−8621 Fax: (212)416−6075 Email: Steven.Banks@oag.state.ny.us ATTORNEY TO BE NOTICED

Defendant City of New York

represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joe Blaize Chairperson, CPSE Disrict 29

represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 4 of 21

Defendant Michael A. Johnson Superintendent, Community School District 29
Defendant Beth Marino Chairperson, CPSE District 25
Defendant Michelle Fratti Superintendent, Community School District 25

Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jane R. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin John Bowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/16/2003
05/16/2003
05/16/2003 05/19/2003 05/21/2003

# Docket Text
1 COMPLAINT against City Of New York, Angelo Gimondo, Joel Klein, Richard P. Mills, New York City Board of Education, New York City Department of Education, Nelly Real−Korb filing fee $ 150, receipt number 277630 Summons Issued, filed by D.D.. (Attachments: # 1 Civil Cover Sheet)(Villanueva, William) (Entered: 05/19/2003)
3 Minute Entry for proceedings held before David G. Trager : Status Conference held on 5/16/2003. Counsel for the parties; RULINGS: Hearing on TRO and preliminary injunction adjourned to Wednesday 5/21/03 at 1:30. (Permaul, Jenny) (Entered: 05/29/2003)
7 MEMORANDUM OF LAW in Support of Motion for Preliminary Injunction by D.D. (Piper, Francine) (Entered: 06/27/2003)
Case reassigned to Judge David G. Trager. Judge Carol B. Amon no longer assigned to the case. Parties notified. (Bowens, Priscilla) (Entered: 05/23/2003)
4 Minute Entry for proceedings held before Carol B. Amon : Status Conference held on 5/21/2003. Preliminary Injunction granted (Permaul, Jenny) (Entered: 05/29/2003)

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05/27/2003
06/10/2003 06/16/2003
06/19/2003 06/19/2003 06/19/2003 06/19/2003 06/24/2003 07/14/2003 07/15/2003
08/07/2003 08/07/2003 08/07/2003 08/07/2003 08/07/2003
08/07/2003 08/07/2003

2 ORDER Defts. Board of Education and Department of Education shall comply withan implement the decision of the Hearing Officer Mindy Wolman dated 4/30/03. Signed by Judge David G. Trager on 5/21/03. (Greene, Donna) (Entered: 05/27/2003)
5 ORDER endorsed on letter dated 6/5/03 from Martin Bowe to Judge Trager. Application for City defts. to respond to complaint by 7/2/03 is granted . Signed by Judge David G. Trager on 6/4/03. (Greene, Donna) (Entered: 06/10/2003)
6 AMENDED COMPLAINT against Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, City Of New York, Angelo Gimondo, Joel Klein, Richard P. Mills, New York City Board of Education, New York City Department of Education, Nelly Real−Korb, filed by A.C., B.T., D.D..(Greene, Donna) (Entered: 06/26/2003)
9 Notice of MOTION to Certify Class by A.C., B.T., D.D.. (Greene, Donna) (Entered: 07/07/2003)
10 Notice of MOTION for Preliminary Injunction by A.C., B.T., D.D.. (Greene, Donna) (Entered: 07/07/2003)
11 MEMORANDUM OF LAW in Support of Motion for Temporary Restraining Order for named plfs. and re 10 Notice of MOTION for Preliminary Injunction by A.C., B.T., D.D.. (Greene, Donna) (Entered: 07/07/2003)
12 MEMORANDUM OF LAW in Support re 9 Notice of MOTION to Certify Class by A.C., B.T., D.D.. (Greene, Donna) (Entered: 07/07/2003)
8 AFFIDAVIT of Service for Amended Summons and Amended Complaint served on Michael Johnson, Beth Marino, Michelle Fratti, Joe Blaize on 6/23/03. (Piper, Francine) (Entered: 06/30/2003)
13 SUMMONS Returned Executed Richard P. Mills served on 7/11/2003, answer due 7/31/2003. (Greene, Donna) (Entered: 07/17/2003)
14 Minute Entry for proceedings held before David G. Trager : Status Conference held on 7/15/2003. Defts. to file answer to complaint and opposition papers to pltfs. motions for preliminary injunction and class certificatin by 10/8/03. Defts. shall also provide the court with updated statistics regarding the number of unplaced children with IEP's in August and Septemeber. (Greene, Donna) (Entered: 08/05/2003)
15 Letter dated 6/20/03 from Jane Goldberg to Judge Trager, City dfts request that they be given a reasonable period of time to respond to plaintiff's voluminous papers seeking a preliminary injunction. (Piper, Francine) (Entered: 08/07/2003)
16 Letter dated 6/20/03 from Ilann Maazel to Judge Trager, pltff's propose that dft's serve opposition papers to their motion for preliminary injunction by 6/27; pltff's reply 7/1. (Piper, Francine) (Entered: 08/07/2003)
17 Letter dated 6/27/03 from Jane Goldberg to Judge Trager, reporting that City dfts have located placements for the additional plaintiff children, B.T. and A.C. (Piper, Francine) (Entered: 08/07/2003)
18 Letter dated 7/1/03 from Ilann Maazel to Judge Trager, requesting that the court set a briefing schedule for pltff's motion for a preliminary injunction. (Piper, Francine) (Entered: 08/07/2003)
19 Letter dated 7/1/03 from Jane Goldberg to Judge Trager, in response to pltff's letter dated 7/1/03 requesting that dfts respond to their motion for a preliminary injunction within one week, and also requesting an extension of time until 8/30/03 to respond to the Amended Class Action complaint. (Piper, Francine) (Entered: 08/07/2003)
20 Letter dated 7/1/03 from Ilaan Maazel to Judge Trager, clarifying some apparent misunderstandings in Ms. Goldberg's letter. (Piper, Francine) (Entered: 08/07/2003)
21 Letter dated 7/2/03 from Janice Birnbaum to Judge Trager, requesting that the court extend the City dft's time until 8/30/03 to respond to amended complaint;

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08/07/2003 08/11/2003 08/18/2003 08/25/2003 09/11/2003 10/14/2003 10/16/2003 10/16/2003 10/16/2003 10/16/2003
11/04/2003 11/04/2003 11/07/2003

City dft's also request that a reasonable briefing schedule be set to respond to pltff's motion for a preliminary injunction. (Piper, Francine) (Entered: 08/07/2003)
22 Letter dated 7/11/03 from Ilann M. Maazel to Judge Trager, requesting that the court set a briefing schedule for the preliminary injunction motion. (Piper, Francine) (Entered: 08/07/2003)
23 Letter dated 8/7/03 from Jane Goldberg to Judge Trager, requesting that the court mmediately modify or vacate its order of 5/21/03, concerning the implementation of a pre−school placement and services for the minor plaintiff, since the pltff's circumstances have changed materially. (Piper, Francine) (Entered: 08/11/2003)
24 ORDER, (endorsed on letter dated 8/12/03 from Jane Goldberg to Judge Trager), application to modify the 5/21/03 order so that City dfts may discontinue paying for SEIT services that are provided by Theracare is Granted. ( Signed by Judge David G. Trager on 8/12/03) (Piper, Francine) (Entered: 08/18/2003)
25 ORDER setting initial conference for 10/16/03 at 12:00 p.m. before Mag. Mann. Signed by Judge Roanne L. Mann on 8/18/03. (Greene, Donna) (Entered: 08/25/2003)
26 TRANSCRIPT of Proceedings held on 7/15/03 before Judge Judge Trager. Court Reporter: Burton H. Sulzer. Ilann M. Maazel, Esq. and Matthew Brinckerhoff, Esq. for the pltf. Jane R. Goldberg, Esq. and Martin Bowe, Esq. for NYC. Steven Banks, Esq. and Bruce B. McHale, Esq. for NYS. (Greene, Donna) (Entered: 09/17/2003)
27 ORDER endorsed on letter dated 9/26/03 from Steven L. Banks to Judge Trager. Application for an extension unitl 10/29/03 to respond to pltfs. amended ocmplaint and motion is granted. Signed by Judge David G. Trager on 10/1/03. (Greene, Donna) (Entered: 10/14/2003)
28 Letter dated 10/7/03 from Ilann Maazel to Mag. Mann, opposing dft's request to postpone the initial pretrial conference scheduled for 10/16. (Piper, Francine) (Entered: 10/16/2003)
29 Letter dated 10/8/03 from Jane R. Goldberg to Mag. Mann, City dft's request that the initial disclosure and the initial conference be adjourned until the court's decision on the motion for class certification. (Piper, Francine) (Entered: 10/16/2003)
30 Letter dated 10/7/03 from Steven Banks to Mag. Mann, dft's requests that the initial pretrial conference scheduled for 10/16/03, including the time for automatic disclosures, be adjourned until after the court's decision on the motion for class certification. (Piper, Francine) (Entered: 10/16/2003)
31 ORDER, The deadline for serving automatic disclosure is adjourned sine die. If the case does not appear to be settling, the initial conference will go forward on 11/7/03, at which time the court will determine whether and to what extent to permit discovery to proceed. (Signed by Judge Roanne L. Mann on 10/9/03) (Piper, Francine) (Entered: 10/16/2003)
32 ORDER, (endorsed on letter dated 10/27/03 from Jane Goldberg to Judge Trager), application granted. (Signed by Judge David G. Trager on 10/30/03). (Piper, Francine) (Entered: 11/04/2003)
33 Letter from Steven L. Banks to Mag. Mann, dated 10/28/03 advising that the parties are still exploring several proposals, because it is unlikely that a settlement will be finalized in the near term, the parties will meet with the court on 1/7/03 as scheduled. (Greene, Donna) (Entered: 11/04/2003)
34 Minute Entry for proceedings held before Roanne L. Mann : Initial Conference Hearing held on 11/7/2003. Fact Discovery to be completed by 4/30/04. Next conference (settlement) scheduled for 7/13/04 10:00. Automatic disclosure shall be completed by 12/1/04. Pleadings may be amended and new parties added until 3/12/04. Pltfs. non−medical expert disclosure shall be served by 5/28/04; defts. is due 6/28/04. Medical expert disclosure and expert depositions are deferred until after the settlement conference. (Greene, Donna) (Entered: 11/13/2003)

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11/10/2003 11/14/2003 11/20/2003 12/04/2003
12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/09/2003 12/19/2003 01/14/2004
01/14/2004 03/24/2004
03/31/2004

36 ANSWER to Amended Complaint by Joe Blaize, City Of New York, Michelle Fratti, Michael A. Johnson, Joel Klein, Beth Marino, New York City Board of Education, New York City Department of Education.(Piper, Francine) (Entered: 11/17/2003)
35 ORDER endorsed on letter dated 11/10/03 from Jane R. Goldberg to Judge Trager. Application to extend time until 11/21/03 in which to file the stipulation as the parties continue to negotiate clas definition. Signed by Judge David G. Trager on 11/10/03. (Greene, Donna) (Entered: 11/14/2003)
37 Letter dated 11/13/03 from Jane Goldberg to Judge Trager, advising that the NYC Dept of Education has reduced the number of children waiting for services by fifty percent since August 2003. (Piper, Francine) (Entered: 11/20/2003)
38 ORDER endorsed on letter dated 11/20/03 from Jane R. Goldberg to Judge Trager. Application for defts. to serve opposition to class certification together with their responsive papers to pltfs. motion for a preliminary injunction by 12/8/03 is granted. Signed by Judge David G. Trager on 11/20/03. (Greene, Donna) (Entered: 12/04/2003)
39 Municipal Defts. Memorandum of Law in opposition ot pltfs. motions for a preliminary injunction and class certification. (Greene, Donna) (Entered: 12/19/2003)
40 Declaration of Jane R. Goldberg in opposition to pltfs. request for a preliminary injunction and motion for class certification. (Greene, Donna) (Entered: 12/19/2003)
42 Notice of MOTION to Dismiss by Richard P. Mills. (Greene, Donna) (Entered: 01/20/2004)
43 MEMORANDUM OF LAW in Support re 42 Notice of MOTION to Dismiss and in opposition to pltfs. motion for preliminary injunction and class certification by Richard P. Mills. (Greene, Donna) (Entered: 01/20/2004)
44 MEMORANDUM OF LAW in Opposition re 42 Notice of MOTION to Dismiss by Joe Blaize, Michelle Fratti, Angelo Gimondo, Michael A. Johnson, Joel Klein, Beth Marino, New York City Board of Education, New York City Department of Education, Nelly Real−Korb. (Greene, Donna) (Entered: 01/20/2004)
45 REPLY MEMORANDUM OF LAW in Support re 42 Notice of MOTION to Dismiss by Richard P. Mills. (Greene, Donna) (Entered: 01/20/2004)
46 AFFIDAVIT OF Rebecca Cort in opposition to pltfs. motions for preliminary injunction and class certification. (Greene, Donna) (Entered: 01/20/2004)
41 Plaintiffs' reply memorandum in support of 9 Notice of MOTION to Certify Class, 10 Notice of MOTION for Preliminary Injunction and in opposition to deft Mills' motion to dismiss. (Chee, Alvin) (Entered: 12/23/2003)
47 MEMORANDUM OF LAW in Opposition re 9 Notice of MOTION to Certify Class, 10 Notice of MOTION for Preliminary Injunction by Joe Blaize, City Of New York, Michelle Fratti, Michael A. Johnson, Joel Klein, Beth Marino, New York City Board of Education, New York City Department of Education. (Piper, Francine) (Entered: 01/23/2004)
48 Declaration of Jane R. Goldberg in opposition to pltff's request for a preliminary injunction and motion for class certification. (Piper, Francine) (Entered: 01/23/2004)
50 Minute Entry for proceedings held before David G. Trager : Status Conference held on 3/24/2004. Motion hearing held. Decision reserved. The parties shall submit to the court by 4/2/04 letter briefs regarding the possible appointment of a special master, and other proposals for settlement or mediation. (Piper, Francine) (Entered: 04/01/2004)
49 MEMORANDUM AND ORDER, the ADA and Section 504 claims against the City defts are dismissed. Pltfs. motion for a preliminary injunction is denied. Signed by Judge David G. Trager on 3/30/04. (Greene, Donna) c/m (Entered:

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 8 of 21

04/05/2004
04/08/2004 04/08/2004 04/13/2004 04/16/2004
04/16/2004 04/23/2004
04/26/2004 04/26/2004 04/26/2004 04/29/2004
04/30/2004 05/04/2004 05/04/2004

04/01/2004)
51 TRANSCRIPT of Proceedings held on 3/24/04 before Judge USDJ David G. Trager. For the plt: Ilann Maazel &Matthew Brinckerhoff. For the dft: Jane Goldberg, Martine Bone, &Steven L. Banks. Official Transcriber: Rosalie Lombardi. Transcription Service: Transcription Plus II. (Noh, Kenneth) (Entered: 04/05/2004)
52 ORDER endorsed on letter dated 4/2/04 from Ilann M. Maazel to Judge Trager. Application granted. Pltfs. shall file their submission until 4/7/04. Defts. shall file their submission until 4/9/04. Signed by Judge David G. Trager on 4/7/04. (Greene, Donna) (Entered: 04/08/2004)
53 Letter dated 4/7/04 from Ilann M. Maazel to Judge Trager, plff's request that the court appoint a master. (Piper, Francine) (Entered: 04/08/2004)
54 SCHEDULING ORDER: Initial Conference set for 5/7/2004 12:00 PM in Courtroom B before Magistrate−Judge Roanne L. Mann.. Signed by Judge Roanne L. Mann on 04/13/04. (Maynard, Pat) (Entered: 04/13/2004)
55 Letter from Jane R. Goldberg to Judge Trager dated 4/9/04 City defts. oppose the appointment of a special master which pltfs. first suggested at the March 24th conference and again in their letter dated 4/7/04. In the event that the Court decides that it will consider further the issue of whether or not to appoint a special master, City defts request the opportunity to be heard on that issue. (Greene, Donna) (Entered: 04/16/2004)
56 Letter from Steven L. Banks to Judge Trager dated 4/9/04 deft. Mills opposes the request by pltfs. for appointment of a Special Master in this action. (Greene, Donna) (Entered: 04/16/2004)
57 ORDER endorsed on letter dated 4/12/04 from Ilann M. Maazel to Judge Trager. Application granting Pltf. request for a short extension to move the court for reconsideration of its March 30 Order denying pltfs. motion for a preliminary injunction until 4/23/04. Signed by Judge David G. Trager on 4/12/04. (Greene, Donna) (Entered: 04/23/2004)
58 ORDER endorsed on letter dated 4/14/04 from Steven L. Banks to Judge Trager. Application granted. Deft. Mills time to answer the amended complaint extended until 5/14/04. Signed by Judge David G. Trager on 4/14/04. (Greene, Donna) (Entered: 04/26/2004)
63 Notice of MOTION for Reconsideration by A.C., B.T., D.D.. (Greene, Donna) (Entered: 05/10/2004)
64 Plaintiffs Motion for Partial Reconsideration of the Court's Memorandum and Order dated March 30, 2004.(Greene, Donna) (Entered: 05/10/2004)
66 NOTICE OF APPEAL as to 49 Memorandum &Opinion filed 3/31/04, by attorney for D.D., A.C., B.T.. Filing fee $ 255.00, receipt number 293310. Affidavit of service attached. Forms C and D mailed to attorney Ilann M. Maazel at 545 Madison Ave., 3rd Floor, New York, NY. 10022. USCA notified. Acknowledgment requested. (McGee, Mary Ann) (Entered: 05/10/2004)
65 Letter dated 4/30/04 from Ilann Maazel, Esq. to MJ Mann requesting an extension of expert discovery. (Chee, Alvin) (Entered: 05/10/2004)
59 ORDER, the parties joint request for a two−month extension of the fact discovery deadline, until 6/30/04 is granted. (Signed by Judge Roanne L. Mann on 4/26/04) (Piper, Francine) (Entered: 05/04/2004)
Case set to ECF status. All civil actions before this Judge are ECF matters. It is MANDATORY that you file all original documents electronically. Please refer to the Judge's Individual Rules. From this point forward, original documents are REQUIRED to be filed electronically and forward a hard copy, labeled courtesy copy, to chambers. The Judges' Individual Rules of Chambers and further information on ECF may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov. (Piper, Francine) (Entered: 05/04/2004)

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05/05/2004
05/06/2004
05/07/2004 05/10/2004 05/14/2004
05/14/2004
05/14/2004 05/14/2004 05/21/2004 05/21/2004 05/21/2004 05/25/2004 05/27/2004
06/09/2004 06/09/2004 06/11/2004
06/11/2004

60 ORDER endorsed on letter dated 4/27/04 from Jane Goldberg, Esq. to MJ Mann: Application granted. Expert disclosure is extended by two months. The 7/13/04 settlement conference is adjourned to 9/9/04 at 10:15 AM. Signed by Judge Roanne L. Mann on 4/29/04. (Chee, Alvin) (Entered: 05/05/2004)
61 ORDER endorsed on letter dated 4/26/04 from Ilann M. Maazel to Judge Trager. Application Granted. Pltfs. time to file their motion for reconsideration shall be extended until 4/26/04. Signed by Judge David G. Trager on 4/26/04. (Greene, Donna) (Entered: 05/06/2004)
62 Letter dated 4/23/04 from Ilann Maazel to Mag. Mann, requesting a modest expansion of the current discovery schedule. (Piper, Francine) (Entered: 05/07/2004)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 66 Notice of Appeal, (McGee, Mary Ann) (Entered: 05/10/2004)
67 RESPONSE in Opposition re 63 Notice of MOTION for Reconsideration filed by Joe Blaize, City Of New York, Michelle Fratti, Angelo Gimondo, Michael A. Johnson, Joel Klein, Beth Marino, New York City Board of Education, New York City Department of Education, Nelly Real−Korb. (Goldberg, Jane) (Entered: 05/14/2004)
68 ORDER endorsed on letter dated 5/6/04 from Steven Banks, Esq. to Hon. David G. Trager: Application granted extending time until 5/14/04 for deft Mills to serve and file papers opposing plaintiffs' motion for reconsideration. Signed by Judge David G. Trager on 5/10/04. (Chee, Alvin) (Entered: 05/14/2004)
69 ANSWER to Amended Complaint by Richard P. Mills.(Banks, Steven) (Entered: 05/14/2004)
70 RESPONSE in Opposition re 63 Notice of MOTION for Reconsideration filed by Richard P. Mills. (Banks, Steven) (Entered: 05/14/2004)
71 Letter dated 5/6/04 from Jane Goldberg to Judge Trager, joining in State dft's request for an extension of time to serve their response to pltff's motion for reconsideration. (Piper, Francine) (Entered: 05/21/2004)
72 REPLY to Response to Motion re 63 Notice of MOTION for Reconsideration filed by D.D.. (Maazel, Ilann) (Entered: 05/21/2004)
73 AFFIDAVIT of Service for Reply MOL served on Steven Banks &Jane Goldberg on May 21, 2004, filed by D.D.. (Maazel, Ilann) (Entered: 05/21/2004)
74 Letter dated 4/23/04 from Steven Banks to Mag. Mann, requesting a two−month extension of time until 6/30/04 for all dfts to conduct fact discovery. (Piper, Francine) (Entered: 05/25/2004)
79 Letter dated 5/26/04 from Jane Goldberg Esq. to USDJ Trager responding to the 5/26/04 letter from plaintiffs' counsel purporting to withdraw their motion for reconsideration of the Court's denial of a preliminary injunction. Declaration of Larry Sonnenshein's Opposition enclosed. (Williams−Jackson, Sandy) (Entered: 06/18/2004)
75 Letter from Ilann M. Maazel to Judge Trager dated 5/26/04 withdrawing motion dated 4/23/04 seeking partial reconsideration of the courts 3/30/04 Memorandum and Order. (Greene, Donna) (Entered: 06/09/2004)
76 Letter. (Attachments: # 1 # 2 letter)(Goldberg, Jane) (Entered: 06/09/2004)
77 ORDER: Each of the discovery deadlines is extended for 30 days. Depositions will commence after July 6, 2004, on dates in July agreeable to counsel. The City defendants shall respond to plaintiffs' document demands, served on April 16, 2004, by June 22, 2004. Signed by Judge Roanne L. Mann on 6/11/04. (Koh, Marianne) (Entered: 06/11/2004)
81 USCA Scheduling Order as to 66 Notice of Appeal, filed by B.T., D.D., A.C.. Appeal Record due by 7/14/2004. Appellant's brief shall be filed on or before 7/21/04. Appellee brief shall be filed on or before 8/20/04. That the argument of

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 10 of 21

06/16/2004 06/17/2004 06/18/2004 06/21/2004
06/21/2004 06/21/2004 06/21/2004 06/21/2004
06/21/2004 06/21/2004 06/25/2004
06/28/2004 06/29/2004 07/02/2004 07/16/2004 07/19/2004 07/19/2004 07/19/2004

the appeal shall be heard no earlier than the week of 10/4/04.(Drayton, Lorraine) (Entered: 06/21/2004)
78 Minute Entry for proceedings held before Roanne L. Mann : Calendar Order of Tape−recorded Telephone Conference held on 6/16/2004. (Maynard, Pat) (Entered: 06/16/2004)
Certified and Transmitted INDEX on Appeal to US Court of Appeals re 66 Notice of Appeal. USCA#04−2542. Acknowledgment requested. (McGee, Mary Ann) (Entered: 06/18/2004)
80 Letter from Ilann Maazel to Judge Mann Regarding FERPA Notice. (Maazel, Ilann) (Entered: 06/18/2004)
82 ORDER re 80 Letter. The parties reportedly are attempting to resolve their differences as to the proposed notice. Counsel shall notify the Court, by 2:00 p.m., whether they have agreed upon a form of notice. If they have not, the Court will rule at that time. Signed by Judge Roanne L. Mann on 06/21/04. (Maynard, Pat) (Entered: 06/21/2004)
83 Letter from Municipal Defendants to Hon. Roanne L. Mann Regarding Municipal Defendants' revised proposed notification of disclosure dated June 21, 2004.. (Bowe, Martin) (Entered: 06/21/2004)
84 Letter from Ilann Maazel to Judge Mann Regarding Proposed FERPA Notice. (Maazel, Ilann) (Entered: 06/21/2004)
85 NOTICE of Appearance by Ilann Maazel on behalf of all plaintiffs (Maazel, Ilann) (Entered: 06/21/2004)
86 Letter from Martin Bowe for municipal defendants to Hon. Roanne L. Mann Regarding Letter from Martin Bowe for Municipal Defendants to Hon. Roanne L. Mann Regarding extension to respond to class counsel's objections to municipal defnedants' revised proposed notification, and for the parties to further attmempt to resolve disagreements with regard to the notification form; and an extension of time to make the class notification mailing.. (Bowe, Martin) (Entered: 06/21/2004)
87 ORDER re 80 Letter. Court issues notification order (regarding disclosure) . Signed by Judge Roanne L. Mann on 06/21/04. (Maynard, Pat) (Entered: 06/21/2004)
88 ORDER re 86 Letter. Application denied. Signed by Judge Roanne L. Mann on 06/21/04. (Maynard, Pat) (Entered: 06/21/2004)
89 ORDER: This is to notify the parties that, to date, in response to the notices sent to parents and guardians, the Court has received three objections to disclosure, none of which states the reason for the objection. Signed by Judge Roanne L. Mann on 06/25/04. (Maynard, Pat) (Entered: 06/25/2004)
Email Test − DO NOT REPLY (Guzzi, Roseann) (Entered: 06/28/2004)
91 Acknowledgment from USCA received re: 66 Appeal. Acknowledgment signed by TM on 6/21/04. USCA#04/2542. (Drayton, Lorraine) (Entered: 07/06/2004)
90 Minute Entry for proceedings held before Roanne L. Mann : Telephone Conference held on 7/2/2004. (Maynard, Pat) (Entered: 07/02/2004)
92 Letter from Martin Bowe to Mag. Mann dated 6/18/03 enclosing municipal−defts. proposed Notice of Order Directing Disclosure of Confidential Student Information. (Greene, Donna) (Entered: 07/16/2004)
93 Letter from Ilann Maazel to Hon. Roanne L. Mann Regarding Discovery Extention. (Maazel, Ilann) (Entered: 07/19/2004)
94 Letter from Jane R. Goldberg to Magistrate Judge Mann Regarding discovery. (Goldberg, Jane) (Entered: 07/19/2004)
95 NOTICE of Appearance by Ilann Maazel on behalf of all plaintiffs (Maazel, Ilann) (Entered: 07/19/2004)

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07/20/2004
07/20/2004 08/05/2004 08/05/2004 08/06/2004 08/09/2004 08/10/2004
08/17/2004 08/18/2004
08/31/2004 09/13/2004 09/13/2004
09/15/2004 09/15/2004 09/15/2004
09/27/2004 09/27/2004

96 ORDER re 93 Letter. Application granted, on consent. Fact discovery is extended to 8/31/04. Plaintiffs' non−medical expert disclosure is due by 9/30/04; defendant's is due by 10/29/04. The 10/8/04 settlement conference is due by 10/29/04. The 10/8/04 settlement conference is adjourned to 11/3/04 at 10:00 a.m. Representatives of the defendants with full authority to settle the case must attend. Signed by Judge Roanne L. Mann on 07/19/04. (Maynard, Pat) (Entered: 07/20/2004)
Email Test − DO NOT REPLY (Piper, Francine) (Entered: 07/20/2004)
97 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding proposed protective order. (Attachments: # 1 Text of Proposed Order)(Maazel, Ilann) (Entered: 08/05/2004)
98 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Protective Order. (Maazel, Ilann) (Entered: 08/05/2004)
99 ORDER re 98 Letter. Defendants shall respond in writing by 8/9/04. Signed by Judge Roanne L. Mann on 08/05/04. (Maynard, Pat) (Entered: 08/06/2004)
100 Letter from Jane R. Goldberg to Magistrate Judge Roann L. Mann Regarding Proposed Protective Order. (Attachments: # 1 Text of Proposed Order municipal defendants' proposed protective order)(Goldberg, Jane) (Entered: 08/09/2004)
101 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Proposed Protective Order. (Attachments: # 1 Exhibit Defendants' Draft Sent to Plaintiffs on July 8, 2004# 2 Text of Proposed Order Plaintiffs' Proposed Order (corrected))(Maazel, Ilann) (Entered: 08/10/2004)
102 Letter from Ilann M. Maazel to Hon. Roanne L. Martin Regarding Discovery extension. (Maazel, Ilann) (Entered: 08/17/2004)
103 ENDORSED ORDER re 102 Letter. Application granted. All discovery deadlines are extended by 17 days. The 11/3/04 settlement conference is adjourned to 12/2/04 at 2:00 p.m. Signed by Judge Roanne L. Mann on 08/17/04. (Maynard, Pat) (Entered: 08/18/2004)
104 Letter from Ilann M. Maazel to Mag. Mann dated 6/15/04, seeking an order compelling the Municipal defts. to comply with pltfs discovery demands. (Greene, Donna) (Entered: 08/31/2004)
105 PROTECTIVE ORDER with modifications. Signed by Judge Roanne L. Mann on 09/13/04. (Maynard, Pat) (Entered: 09/13/2004)
106 ENDORSED ORDER dated 9/10/04 from Ilann M. Maazel requesting the parties joint request for extension of fact discovery. The parties' request for a two−week extension of all discovery deadlines is granted. The 12/2/04 settlement conference will go forward as scheduled. I light of the Court's issuance of a Protective Order, plaintiffs' remaining request is moot . Signed by Judge Roanne L. Mann on 09/13/04. (Maynard, Pat) (Entered: 09/13/2004)
107 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding Deposition of Daniela Nacov. (Goldberg, Jane) (Entered: 09/15/2004)
108 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Extention of time for defendants to depose Ms. Nacov. (Maazel, Ilann) (Entered: 09/15/2004)
109 ORDER re 107 Letter. Application granted to the extent consented to by plaintiff's counsel. The deadline for completing Daniela Nacov's deposition is extended to 10/22/04. Signed by Judge Roanne L. Mann on 09/15/04. (Maynard, Pat) (Entered: 09/15/2004)
110 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding discovery. (Goldberg, Jane) (Entered: 09/27/2004)
111 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Discovery Requests. (Attachments: # 1 # 2 # 3 # 4)(Maazel, Ilann) (Entered: 09/27/2004)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 12 of 21

09/28/2004 09/28/2004 09/28/2004 10/08/2004 10/21/2004 10/25/2004 10/26/2004
12/09/2004 12/10/2004 12/10/2004 12/10/2004
12/22/2004 02/01/2005 02/01/2005 02/02/2005 02/07/2005 02/07/2005 02/07/2005

112 Letter from Steven L. Banks to Honorable Roanne L. Mann. (Banks, Steven) (Entered: 09/28/2004)
113 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding discovery. (Goldberg, Jane) (Entered: 09/28/2004)
114 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Reply to discovery demands. (Maazel, Ilann) (Entered: 09/28/2004)
115 MEMORANDUM AND ORDER The Court rules on the parties' unresolved discovery disputes. Signed by Judge Roanne L. Mann on 10/08/04. (Maynard, Pat) (Entered: 10/08/2004)
116 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Expert Discovery. (Maazel, Ilann) (Entered: 10/21/2004)
117 Letter from Jane R. Goldberg to Hon. Roanne L. Mann Regarding discovery issues. (Goldberg, Jane) (Entered: 10/25/2004)
118 ORDER: Court responds to counsel's letters of 10/21/04 and 10/25/04. The deadlines for serving expert disclosure are adjourned, on consent, to 12/7/04 for plaintiffs and 1/14/05 for defendants. The 12/2/04 settlement conference is adjourned to 2/8/05 at 2:00 p.m.. Signed by Judge Roanne L. Mann on 10/26/04. (Maynard, Pat) (Entered: 10/26/2004)
119 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding Expert Disclosure. (Attachments: # 1)(Goldberg, Jane) (Entered: 12/09/2004)
120 Letter from Ilann Maazel to Hon. Roanne L. Mann Regarding extension request. (Maazel, Ilann) (Entered: 12/10/2004)
121 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding expert disclosure. (Goldberg, Jane) (Entered: 12/10/2004)
122 ORDER re 120 Letter, 121 Letter. The Court rules on defendant's request for discovery extension. Plaintiffs reportedly have not yet served their expert disclosure, which was due 12/7/04. They shall do so by 12/14/04. The deadline for defendants' expert disclosure is extended to 2/8/05. The 2/8/05 settlement conference is adjourned to 2/16/05 at 10:00 a.m. The parties shall supply the Court with their respective expert disclosure by 2/10/05 . Signed by Judge Roanne L. Mann on 12/10/04. (Maynard, Pat) (Entered: 12/10/2004)
123 STIPULATION and PROTECTIVE ORDER. So−Ordered. Signed by Judge Roanne L. Mann on 12/21/04. (Maynard, Pat) (Entered: 12/22/2004)
124 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding extension of time to produce expert report. (Goldberg, Jane) (Entered: 02/01/2005)
125 Letter from Mariann Meier Wang to Hon. Roanne L. Mann Regarding Objection to Defendants Request for Extension. (Attachments: # 1 Appendix Plaintiffs' Expert Report)(Maazel, Ilann) (Entered: 02/01/2005)
126 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding extension to produce expert report. (Goldberg, Jane) (Entered: 02/02/2005)
127 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding status of municipal defendants' expert witness. (Goldberg, Jane) (Entered: 02/07/2005)
128 Letter from Mariann Meier Wang to Hon. Roanne L. Mann Regarding Extension for Expert Report. (Wang, Mariann) (Entered: 02/07/2005)
129 ORDER re 124 Letter. Defendants' request for an extension of the deadline for serving their expert disclosure is granted in part: the report shall be served and filed via ECF by February 24, 2005. The February 16, 2005 settlement conference is adjourned to the Court's next available time slot: February 28, 2005 at 10:00 AM. Signed by Judge Roanne L. Mann on 2/7/05. (Lowenstein, Amy) (Entered: 02/07/2005)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 13 of 21

02/24/2005
02/28/2005
03/24/2005 03/25/2005
03/30/2005 03/30/2005 03/31/2005 04/01/2005 04/04/2005
04/05/2005 04/12/2005 05/02/2005 05/02/2005 05/02/2005 05/06/2005 05/11/2005 05/27/2005

130 NOTICE by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb Municipal Defendants' Expert Report (Attachments: # 1 Addendum# 2 Appendix Appendices 1−4# 3 Appendix Appendices 5−6# 4 Appendix Appendix 7# 5 Appendix Appendix 8# 6 Appendix Appendix 9# 7 Appendix Appendix 10−A# 8 Appendix Appendix 10−B# 9 Appendix Appendix 11# 10 Appendix Appendix 12)(Goldberg, Jane) (Entered: 02/24/2005)
131 Minute Entry for proceedings held before Roanne L. Mann : Settlement Conference held on 2/28/2005. Settlement discussions begin. Defendants shall, by 3/24/05, serve and submit their off−the−record proposals for systemic changes. A follow−up conference with the Court will be held on Monday, 4/11/05 at 2:00 p.m. The parties shall respond to the cross−demands no later than 3/30/05 (Maynard, Pat) (Entered: 02/28/2005)
132 Letter MOTION for Extension of Time to File to Submit Settlement position statement by Richard P. Mills. (Banks, Steven) (Entered: 03/24/2005)
133 ORDER granting 132 on consent Motion for Extension of Time to File. In addition, the 4/11/05 settlement conference will commence at 10:00 AM, rather than 2:00 PM. Signed by JudgeRoanne L. Mann on 3/25/05. (Lowenstein, Amy) (Entered: 03/25/2005)
134 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding the accuracy of the PNA List. (Maazel, Ilann) (Entered: 03/30/2005)
135 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding time in which to respond to plaintiffs' request for additional discovery. (Goldberg, Jane) (Entered: 03/30/2005)
136 ORDER re 135 Letter. Application granted on consent. Signed by Judge Roanne L. Mann on 03/31/05. (Maynard, Pat) (Entered: 03/31/2005)
137 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding plaintiffs' request to reopen discovery. (Goldberg, Jane) (Entered: 04/01/2005)
138 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding the Accuracy of the PNA List. (Attachments: # 1 Exhibit Exhibit A to Pls' Reply Letter of Discovery into Accuracy of PNA List# 2 Exhibit Exhibit B to Pls' Reply Letter of Discovery into Accurcy of PNA List)(Maazel, Ilann) (Entered: 04/04/2005)
139 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding plaintiffs' request to reopen discovery. (Goldberg, Jane) (Entered: 04/05/2005)
140 Minute Entry for proceedings held before Roanne L. Mann : Discovery/Settlement Hearing held on 4/11/2005. Status report due 5/11/05 (Maynard, Pat) (Entered: 04/12/2005)
141 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Production of Documents. (Maazel, Ilann) (Entered: 05/02/2005)
142 Letter from Jane R. Goldberg to Magisrate Judge Roanne L. Mann Regarding plaintiffs' request for additional discovery. (Goldberg, Jane) (Entered: 05/02/2005)
143 ORDER re 142 Letter. Application granted. Ordered by Judge Roanne L. Mann on 05/02/05. (Maynard, Pat) (Entered: 05/02/2005)
144 Letter from Jane R. Goldberg to Honorable Roanne L. Mann Regarding plaintiffs' request to reopen discovery. (Goldberg, Jane) (Entered: 05/06/2005)
145 ORDER The status report is due by 5/25/05. Resolution of the parties discovery dispute is deferred pending receipt of the status report. Ordered by Judge Roanne L. Mann on 05/11/05. (Maynard, Pat) (Entered: 05/11/2005)
146 ORDER endorsed on status report letter dated 5/25/05 from Steven L. Banks. The parties shall submit an updated status report by 6/24/05 via ECF. Resolution of the parties' discovery dispute is deferred. Ordered by Judge Roanne L. Mann on 05/27/05. (Maynard, Pat) (Entered: 05/27/2005)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 14 of 21

06/24/2005
07/15/2005 07/18/2005 07/22/2005 07/25/2005
07/26/2005 09/09/2005 09/12/2005 09/28/2005 09/29/2005 10/24/2005 10/24/2005 10/27/2005 10/28/2005 11/07/2005 11/08/2005 11/16/2005 11/16/2005 11/18/2005 11/18/2005 11/21/2005
12/01/2005

147 ENDORSED ORDER on 6/23/05 status letter (not filed by ECF). Application granted. Ordered by Judge Roanne L. Mann on 6/24/05. (Lowenstein, Amy) (Entered: 06/24/2005)
148 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding extension of time for status report. (Goldberg, Jane) (Entered: 07/15/2005)
149 ORDER re 148 Letter. Application granted. Ordered by Judge Roanne L. Mann on 07/18/05. (Maynard, Pat) (Entered: 07/18/2005)
150 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Status of Settlement Negotiations. (Maazel, Ilann) (Entered: 07/22/2005)
151 ORDER re 150 Letter. Application granted. A status report is due by 9/6/05. Ordered by Judge Roanne L. Mann on 07/25/05. (Maynard, Pat) (Entered: 07/25/2005)
152 AMENDED ORDER re 151 Order. A status report is due by 9/9/05. Ordered by Judge Roanne L. Mann on 07/25/05. (Maynard, Pat) (Entered: 07/26/2005)
153 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding status of settlement negotiations. (Maazel, Ilann) (Entered: 09/09/2005)
154 ORDER re 153 Letter. Application granted.. Ordered by Judge Roanne L. Mann on 09/12/05. (Maynard, Pat) (Entered: 09/12/2005)
155 Letter from Steven L. Banks to Honorable Roanne L. Mann Regarding Settlement discussions. (Banks, Steven) (Entered: 09/28/2005)
156 ORDER re 155 Letter. Application granted. Ordered by Judge Roanne L. Mann on 09/28/05. (Maynard, Pat) (Entered: 09/29/2005)
157 Letter from Steven L. Banks to Honorable Roanne L. Mann Regarding status of settlement discussions. (Banks, Steven) (Entered: 10/24/2005)
158 ORDER re 157 Letter. Application granted. Ordered by Judge Roanne L. Mann on 10/24/05. (Maynard, Pat) (Entered: 10/24/2005)
159 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Protective Order. (Maazel, Ilann) (Entered: 10/27/2005)
160 PROTECTIVE ORDER: So−Ordered as modified. Ordered by Judge Roanne L. Mann on 10/28/05. (Maynard, Pat) (Entered: 10/28/2005)
161 Letter from Steven L. Banks to Honorable Roanne L. Mann Regarding Status of settlement discussions. (Banks, Steven) (Entered: 11/07/2005)
162 ORDER re 161 Letter. Application granted. Ordered by Judge Roanne L. Mann on 11/08/05. (Maynard, Pat) (Entered: 11/08/2005)
163 Letter from Steven L. Banks to Honorable Roanne L. Mann Regarding Status of settlement discussions. (Banks, Steven) (Entered: 11/16/2005)
164 ORDER re 163 Letter. Application granted. Ordered by Judge Roanne L. Mann on 11/16/05. (Maynard, Pat) (Entered: 11/16/2005)
165 Letter from Steven L. Banks to Honorable Roanne L. Mann Regarding Status of settlement discussions. (Banks, Steven) (Entered: 11/18/2005)
166 Letter from Ilann M. Maazel to Hon. Roanne L. Mann Regarding Settlement Negotiations. (Maazel, Ilann) (Entered: 11/18/2005)
167 ORDER re 166 Letter. Application granted. The Court will meeting the parties on 12/2/05 at 2:00 p.m. Persons with final authority to setle on behalf of defendants shall attend. Ordered by Judge Roanne L. Mann on 11/21/05. (Maynard, Pat) (Entered: 11/21/2005)
168 ORDER Defendants object to plaintiffs' ex parte pre−conference submission, dated November 29, 2005. In view of that objection, the Court has refrained from reading plaintiffs' submission. Plaintiffs are directed either to serve copies of that document on defense counsel today, and to notify the Court that service is being made, or to

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 15 of 21

12/06/2005 12/15/2005 12/16/2005 01/06/2006 01/09/2006
01/12/2006
01/12/2006 01/13/2006 01/13/2006 01/17/2006
01/19/2006 01/23/2006
02/03/2006 02/06/2006

serve and submit an alternative pre−conference document today.. Ordered by Judge Roanne L. Mann on 12/01/05. (Maynard, Pat) (Entered: 12/01/2005)
169 Minute Entry for proceedings held before Roanne L. Mann : Settlement Conference held on 12/2/2005. The parties shall engage in further negotiations and submit a status report by 12/16/05 (Maynard, Pat) (Entered: 12/06/2005)
170 Letter from Jane R. Goldberg to Magistrate Judge Roanne L. Mann Regarding status of settlement discussions. (Goldberg, Jane) (Entered: 12/15/2005)
171 ORDER: The parties shall submit an updated status report by 1/6/06. Ordered by Magistrate Judge Roanne L. Mann on 12/16/05. (Maynard, Pat) (Entered: 12/16/2005)
172 Letter re: status on behalf of all parties by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 01/06/2006)
173 ORDER re 172 Letter, filed by New York City Board of Education, New York City Department of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. Application granted. Status report due 1/20/06. Ordered by Judge Roanne L. Mann on 01/09/05. (Maynard, Pat) (Entered: 01/09/2006)
174 ORDER: This is to advise the parties that the Court is in receipt of a letter dated January 7, 2006, from a parent who complains that her child has not been receiving the services that he needs. In view of the privacy interests of the child, the mother's letter, as well as the Court's response thereto, will be filed under seal. Ordered by Judge Roanne L. Mann on 01/12/05. (Maynard, Pat) (Entered: 01/12/2006)
175 Letter re Court's January 12, 2006 Order by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 01/12/2006)
176 Letter to Judge Mann by B.T., A.C., D.D.. (Maazel, Ilann) (Entered: 01/13/2006)
177 Letter re January 12, 2006 Order by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 01/13/2006)
178 ORDER re 177 Letter, filed by New York City Board of Education, New York City Department of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. the Court's staff contacted the mother to inquire whether she has any objection to disclosure of her letter to plaintiffs' counsel and/or defense counsel. She asked that her letter and the Court's response thereto remain under seal. Absent further court order, her request will be honored . Ordered by Judge Roanne L. Mann on 01/17/06. (Maynard, Pat) (Entered: 01/17/2006)
179 Letter re status by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 01/19/2006)
180 ORDER re 179 Letter filed by New York City Board of Education, New York City Department of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. Application granted. Ordered by Judge Roanne L. Mann on 01/20/06. (Maynard, Pat) (Entered: 01/23/2006)
181 Letter to Honorable Roanne L. Mann regarding status of setltlement discusssions by Richard P. Mills. (Banks, Steven) (Entered: 02/03/2006)
182 ORDER re 181 Letter filed by Richard P. Mills. Application granted. Status report due by 2/17/06 . Ordered by Judge Roanne L. Mann on 02/06/06. (Maynard, Pat)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 16 of 21

02/21/2006 02/22/2006 02/28/2006
03/01/2006
03/17/2006 03/17/2006 04/17/2006 04/18/2006 04/19/2006 04/20/2006 04/27/2006 04/28/2006 04/28/2006 05/01/2006 05/02/2006 05/03/2006
05/08/2006

(Entered: 02/06/2006)
183 Letter Regarding Status of Settlement Discussions by Richard P. Mills. (Banks, Steven) (Entered: 02/21/2006)
184 ORDER re 183 Letter filed by Richard P. Mills. Application granted . Ordered by Judge Roanne L. Mann on 02/22/06. (Maynard, Pat) (Entered: 02/22/2006)
185 Letter to Magistrate Judge Roanne L. Mann by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 02/28/2006)
186 ORDER re 185 Letter, filed by New York City Board of Education, New York City Department of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. Application granted. An updated status report is due by 3/17/06 . Ordered by Judge Roanne L. Mann on 03/01/06. (Maynard, Pat) (Entered: 03/01/2006)
187 Letter to Honorable Roanne L. Mann regarding status of settlement discussions by Richard P. Mills. (Banks, Steven) (Entered: 03/17/2006)
188 ORDER re 187 Letter filed by Richard P. Mills. Application granted. Ordered by Judge Roanne L. Mann on 3/17/06. (Gerson, Gayle) (Entered: 03/17/2006)
189 Letter to Judge Roanne L. Mann regarding Settlement by D.D.. (Maazel, Ilann) (Entered: 04/17/2006)
190 ORDER re 189 Letter filed by D.D. Application granted. Status report due 4/19/06. Ordered by Judge Roanne L. Mann on 04/17/06. (Maynard, Pat) (Entered: 04/18/2006)
191 Letter Concerning Settlement by B.T., A.C., D.D.. (Maazel, Ilann) (Entered: 04/19/2006)
192 ORDER re 191 Letter filed by B.T., D.D., A.C. Application Granted. Ordered by Judge Roanne L. Mann on 4/20/06. (Gerson, Gayle) (Entered: 04/20/2006)
Set Deadlines/Hearings: Status Conference set for 5/2/2006 03:15 PM in 13C South before Magistrate−Judge Roanne L. Mann. (Maynard, Pat) (Entered: 04/27/2006)
193 Letter Hon. Roanne L. Mann regarding Conference by D.D.. (Maazel, Ilann) (Entered: 04/28/2006)
194 ORDER re 193 Letter filed by D.D. Application granted on consent. The 5/2/06 conference has been moved to 2:00 p.m. Ordered by Judge Roanne L. Mann on 04/28/06. (Maynard, Pat) (Entered: 04/28/2006)
195 SEALED Letter dated 5/1/06 place in vault. (Greene, Donna) (Entered: 05/02/2006)
196 Letter Concerning Discovery by D.D.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Maazel, Ilann) (Entered: 05/02/2006)
197 Minute Entry for proceedings held before Roanne L. Mann : Settlement Conference held on 5/3/2006. Further settlement discussions are held on the (sealed) record and off the record. The Court directs the parties to confer further in good faith and to submit a status report by 5/10/06. Plaintiff's discovery application is denied without prejudice (Maynard, Pat) (Entered: 05/03/2006)
198 MEMORANDUM AND ORDER Counsel for the City defendants has requested a copy of the transcript of the sealed proceeding that took place on May 3, 2006. Plaintiff's counsel opposes the request. The Court is not persuaded that a truncated transcript of the proceeding is needed by the parties in connection with their continuing discussions.?The City's request is denied without prejudice to a more particularized showing of need. Ordered by Judge Roanne L. Mann on 05/08/06. (Maynard, Pat) (Entered: 05/08/2006)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 17 of 21

05/09/2006 05/09/2006 05/10/2006 05/11/2006 05/26/2006 05/30/2006
06/01/2006 06/07/2006 06/07/2006
06/16/2006 06/16/2006
07/10/2006 07/10/2006 08/10/2006 08/11/2006 09/28/2006

199 SEALED Letter placed in vault; (Faxed letter dated 5/5/06 from Jane R. Goldberg); Date of Sealing: 5.8.06 as per order of USMJ Roanne L. Mann. (Permaul, Jenny) (Entered: 05/09/2006)
200 SEALED Letter placed in Vault; (Faxed letter dated 5/5/06 from Itran M. Maazel); Date of Sealing 5/8/06 as per order of USMJ Roanne L. Mann). (Permaul, Jenny) (Entered: 05/09/2006)
201 Letter to Judge Mann re Status of Conference by B.T., A.C.. (Maazel, Ilann) (Entered: 05/10/2006)
202 ORDER re 201 Letter filed by B.T., A.C. Application granted. Status update due 5/26/06. Ordered by Judge Roanne L. Mann on 05/10/06. (Maynard, Pat) (Entered: 05/11/2006)
203 Letter to Magistrate Judge Mann regarding status by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 05/26/2006)
204 ORDER re 203 Letter, filed by New York City Department of Education, New York City Board of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. Application granted . Ordered by Judge Roanne L. Mann on 05/30/06. (Maynard, Pat) (Entered: 05/30/2006)
205 NOTICE of Appearance by Alba R Morales on behalf of B.T., A.C., D.D. (Morales, Alba) (Entered: 06/01/2006)
206 Letter to Magistrate Judge Roanne L. Mann by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 06/07/2006)
207 ORDER re 206 Letter, filed by New York City Department of Education, New York City Board of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. Application granted . Ordered by Judge Roanne L. Mann on 06/07/06. (Maynard, Pat) (Entered: 06/07/2006)
208 Letter to Magistrate Judge Roanne L. Mann re status by City Of New York, Joe Blaize, Michael A. Johnson, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 06/16/2006)
209 ORDER re 208 Letter, filed by New York City Department of Education, New York City Board of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Michael A. Johnson, Joe Blaize, Michelle Fratti. Application granted. Status report due 7/10/06. Ordered by Judge Roanne L. Mann on 06/16/06. (Maynard, Pat) (Entered: 06/16/2006)
210 Letter to Judge Mann re Revised Draft of a Settlement Agreement by B.T., A.C., D.D.. (Maazel, Ilann) (Entered: 07/10/2006)
211 ORDER re 210 Letter filed by B.T., D.D., A.C. Application granted in substantial part. The parties shall submit an updated status report by 8/10/06. Ordered by Judge Roanne L. Mann on 07/10/06. (Maynard, Pat) (Entered: 07/10/2006)
212 Letter to Judge Roanne L. Mann re status of settlement negotiations by B.T., A.C., D.D.. (Maazel, Ilann) (Entered: 08/10/2006)
213 ORDER re 212 Letter filed by B.T., D.D., A.C. The parties have had ample time to negotiate their differences. September 29th is the final deadline. Ordered by Judge Roanne L. Mann on 08/11/06. (Maynard, Pat) (Entered: 08/11/2006)
214 Letter to Judge Roanne L. Mann re Settlement by B.T., A.C., D.D.. (Maazel, Ilann) (Entered: 09/28/2006)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 18 of 21

10/05/2006 10/20/2006 10/24/2006
10/26/2006 11/02/2006
11/02/2006 11/14/2006
11/27/2006
11/28/2006 12/05/2006 12/05/2006

215 Letter to Magistrate Judge Roanne L. Mann by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 10/05/2006)
216 SCHEDULING ORDER: Status/Scheduling Conference set for 10/24/2006 02:00 PM in 13C South before Magistrate−Judge Roanne L. Mann. Ordered by Judge Roanne L. Mann on 10/20/06. (Maynard, Pat) (Entered: 10/20/2006)
217 Minute Entry for proceedings held before Roanne L. Mann : Status Conference held on 10/24/2006. The Second Circuit has ruled, the case should be quickly readied for trial if it is not settling. The parties shall engage in good faith discussions to settle the case and, if settlement is not reached, to resolve their discovery disputes. They shall submit a status report by 11/1/06. Defendants shall respond to plaintiffs' discovery letter of 5/1/06 by 11/9/06. (Maynard, Pat) Modified on 10/25/2006 (Marziliano, August). (Entered: 10/25/2006)
218 MANDATE of USCA as to 66 Notice of Appeal, filed by B.T.,, D.D.,, A.C. It is Ordered that the judgment of the District Court is VACATED and REMANDED for further proceedings in accordance with the opinion of this Court. Issued as Mandate: 10/18/06. USCA#04−2542−cv. (Attachments: # 1 opinion)(McGee, Mary Ann) (Entered: 10/30/2006)
219 ORDER The Court reluctantly grants in substantial part the parties' request for additional time to engage in settlement discussions. The parties are directed to provide an updated status report by November 13, 2006. If, by that date, they have not reached an agreement in principle to settle the case, the parties shall fax the Court copies of their proposed drafts of settlement documents and the Court will hold a mediation session on November 14, 2006, at 10:00 a.m. All persons whose authorization is needed to settle the case must attend. Ordered by Judge Roanne L. Mann on 11/02/06. (Maynard, Pat) (Entered: 11/02/2006)
220 Sealed Letter from Steven D. Banks. (Greene, Donna) (Entered: 11/02/2006)
221 Minute Entry for proceedings held before Roanne L. Mann : Settlement Conference held on 11/14/2006. The Court conducts further settlement discussions and proposes solutions to some of the remaining issues. The parties are directed to continue their negotiations and to submit an updated status report by 11/21/06. Next discovery conference scheduled for 11/28/06 at 9:15 a.m. (Maynard, Pat) (Entered: 11/14/2006)
222 ORDER A proceeding to resolve the parties' discovery disputes is scheduled for tomorrow morning. The parties have asked that the proceeding be adjourned and that they be given until December 21, 2006 to conclude their settlement negotiations. The parties were warned that the Court would no longer allow them to delay the resolution of this case, whether by trial or settlement. Tomorrow's discovery conference is adjourned, but only to December 6, 2006, at 2:00 p.m. Ordered by Judge Roanne L. Mann on 11/27/06. (Maynard, Pat) (Entered: 11/27/2006)
223 Sealed document containing status report dated 11/21/06 from Steven Banks. Sealed as per order of MJ Mann. (Chee, Alvin) (Entered: 11/30/2006)
224 Letter to Magistrate Judge Roanne L. Mann by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb. (Goldberg, Jane) (Entered: 12/05/2006)
225 ENDORSED ORDER re 224 Letter, filed by New York City Department of Education, New York City Board of Education, City Of New York, Joel Klein, Angelo Gimondo, Nelly Real−Korb, Beth Marino, Michael A. Johnson, Joe Blaize, Michelle Fratti. The Court previously denied the parties' request for an adjournment to 12/21/06, and rescheduled the proceeding to tomorrow. The parties were warned that the case should promptly be readied for trial if it is not going to settle. The Court will grant one final extension, but only until 12/11/06 at 9:30 A.M. Ordered by Judge Roanne L. Mann on 12/5/6. (Moses, Matthew) (Entered: 12/05/2006)

Case: 1:03-cv-2489 As of: 04/24/2014 09:40 PM EDT 19 of 21

12/11/2006
01/12/2007 01/22/2007
01/26/2007 02/05/2007 02/12/2007
02/14/2007 02/23/2007
03/05/2007 03/05/2007 03/05/2007 03/05/2007 03/05/2007 03/06/2007

226 Minute Entry for proceedings held before Roanne L. Mann: Discovery and Settlement Conference held on 12/11/2006. Plaintiffs' counsel shall provide the defense with redacted copies of attorney billing records and with resumes by 12/15/06; defense counsel shall review the records and confer with plaintiffs' counsel and notify the Court, in writing, by 1/10/07, whether the fee issue has been resolved. Discovery is stayed until then. If the case has not been settled, discovery is reopened until 3/09/07. Plaintiffs are entitled to a brief (no more than 2 to 3 hour) deposition of CPSE Administrator Faruki. Any request for a premotion conference before Judge Trager must be filed by 3/16/07. (Johnson, Joshua) (Entered: 12/11/2006)
227 Minute Entry for proceedings held before Roanne L. Mann : Telephone Conference held on 1/12/2007. The parties shall have until 1/24/07 to obtain client endorsement of the proposed settlement stipulation and to resolve fees and costs. (Maynard, Pat) (Entered: 01/12/2007)
228 ORDER of USCA as to 66 Notice of Appeal, filed by B.T., A.C., D.D. The mandate in this case was mistakenly issued to your Court in this case. The mandate was issued to your office on 10/18/06. Please return the mandate to me so that I may re−issue a corrected mandate. Certified on 10/31/06. (Gonzalez, Mary) (Entered: 01/22/2007)
229 SEALED ENVELOPE containing confidential status report dated 1/25/07. Sealed by MJ Mann on 1/26/07. (Vaughn, Terry) (Entered: 01/26/2007)
230 Minute Entry for proceedings held before Roanne L. Mann : Telephone Conference held on 2/5/2007. A settlement conference will be held on 2/12/07 at 10:00 a.m. (Maynard, Pat) (Entered: 02/05/2007)
231 Minute Entry for proceedings held before Roanne L. Mann: Settlement Conference held on 2/12/2007. The Court conducts settlement discussions with the parties. By Wednesday morning, plaintiffs' counsel shall file by ECF a letter with citations to cases approving the use of current rates for previous legal services. The Court will then make a settlement recommendation. (Moses, Matthew) (Entered: 02/12/2007)
232 Letter to Hon. Roanne L. Mann Regarding Hourly Rates by B.T., A.C., D.D. (Maazel, Ilann) (Entered: 02/14/2007)
233 Minute Entry for proceedings held before Roanne L. Mann : Telephone Conference held on 2/23/2007. By 3/12/07, the parties shall submit to Judge Trager with a courtesy copy to this Court's chambers, their signed settlement agreement, stipulated notice to the class, and any other documents necessary to secure preliminary approval of the settlement. (Maynard, Pat) (Entered: 02/23/2007)
234 Notice of MOTION to Dismiss by all defendants. (Goldberg, Jane) (Entered: 03/05/2007)
235 Notice of MOTION to Dismiss by City Of New York. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7) (Goldberg, Jane) (Entered: 03/05/2007)
236 MOTION to Dismiss Memorandum of Law by City Of New York. (Goldberg, Jane) (Entered: 03/05/2007)
237 Notice of MOTION to Dismiss Ehhibit A by City Of New York. (Goldberg, Jane) (Entered: 03/05/2007)
238 MANDATE of USCA as to 66 Notice of Appeal, filed by B.T., A.C., D.D. The judgment of the District court is VACATED &REMANDED for further proceedings in accordance with the opinion of this Court (it is not attached). Issued as mandate on 2/28/2007. (Gonzalez, Mary) (Entered: 03/05/2007)
Motions terminated, docketed incorrectly: 235 Notice of MOTION to Dismiss filed by City Of New York, 236 MOTION to Dismiss Memorandum of Law filed by City Of New York, 237 Notice of MOTION to Dismiss Ehhibit A filed by City Of New York. THESE ARE SUPPORTING DOCUMENTS AND NOT MOTIONS. MOTION TO DISMISS STILL PENDING AS DOCUMENT 234. DO NOT CONTACT CLERK REGARDING THIS MATTER. (Greene, Donna) (Entered: 03/06/2007)

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03/12/2007 03/12/2007 03/30/2007 04/05/2007 04/05/2007
04/05/2007 04/13/2007
04/13/2007 04/13/2007 04/13/2007 04/22/2007 04/24/2007
04/25/2007 04/25/2007 09/18/2007 09/18/2007

239 RESPONSE to Motion re 234 Notice of MOTION to Dismiss filed by A.C., D.D.. (Attachments: # 1 Affidavit Declaration of Ilann M. Maazel in Response to Motion to Dismiss Claims of Plaintiff B.T., and in Support of Motion to Withdraw as Counsel for B.T.) (Maazel, Ilann) (Entered: 03/12/2007)
240 RESPONSE to Motion re 234 Notice of MOTION to Dismiss Notice of Motion to Withdraw as Counsel for Plaintiff B.T. filed by A.C., D.D.. (Maazel, Ilann) (Entered: 03/12/2007)
241 STIPULATION AND ORDER FOR NOTICE TO THE PLAINTIFF CLASS. Ordered by Judge David G. Trager on 3/22/07. (Greene, Donna) (Entered: 03/30/2007)
242 CERTIFICATE OF SERVICE by A.C., D.D. For Notice of Motion to Withdraw as Counsel for B.T. (Maazel, Ilann) (Entered: 04/05/2007)
243 Amended MOTION to Dismiss claims of B.T. by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb.Responses due by 4/24/2007 (Goldberg, Jane) (Entered: 04/05/2007)
244 AFFIDAVIT/AFFIRMATION of Service by Jane R. Goldberg by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb (Goldberg, Jane) (Entered: 04/05/2007)
245 AFFIDAVIT/AFFIRMATION Declaration of Jane R. Goldberg in support of Settlement by City Of New York, Joe Blaize, Michael A. Johnson, Beth Marino, Michelle Fratti, New York City Board of Education, New York City Department of Education, Joel Klein, Angelo Gimondo, Nelly Real−Korb (Attachments: # 1 # 2) (Goldberg, Jane) (Entered: 04/13/2007)
246 AFFIDAVIT in Support of Patricia Shubert in Support of Class Action Settlement by Richard P. Mills. (Banks, Steven) (Entered: 04/13/2007)
247 AFFIDAVIT in Support of Steven L. Banks in Support of Class Action Settlement by Richard P. Mills. (Banks, Steven) (Entered: 04/13/2007)
248 AFFIDAVIT in Support Declaration of Ilann M. Maazel in Support of Settlement Pursuant to Rule 23 by A.C., D.D.. (Maazel, Ilann) (Entered: 04/13/2007)
251 Minute Entry for proceedings held before David G. Trager : Status Conference held on 4/22/2007 (Greene, Donna) (Entered: 09/04/2007)
249 ORDER granting 234 Motion to Dismiss; granting 243 Motion to Dismiss. Defendants filed a motion to dismiss the claims of plaintiff B.T., by and through his Parent and Next Friend, D.N., pursuant to Rule 41(b) for failure to prosecute. In response, Emery, Celli, Brinckerhoff &Abady LLP ("plaintiffs' counsel") filed a motion to withdraw as counsel for B.T. Because plaintiffs' counsel had been unable to contact B.T. since the summer of 2004, plaintiff's counsel was unable to oppose defendants' motion to dismiss. Accordingly, both motions are granted. B.T.'s claims are hereby dismissed with prejudice. Ordered by Judge David G. Trager on 4/24/07. (Trager, David). (Entered: 04/24/2007)
250 STIPULATION AND ORDER. Ordered by Judge David G. Trager on 4/24/07. (Greene, Donna) (Entered: 04/25/2007)
Civil Case Terminated. (Marziliano, August) (Entered: 09/11/2007)
252 Minute Entry for proceedings held before Roanne L. Mann : Sealed recorded Telephone Conference held on 9/17/2007. The parties shall submit an updated status report by 11/1/07. (Maynard, Pat) (Entered: 09/18/2007)
253 Letter dated 9/13/2007 from Ilann M. Maazel to the Honorable Roanne L. Mann requesting the Court to schedule a conference by A.C., D.D. (Marziliano, August) (Entered: 09/18/2007)

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11/01/2007 11/02/2007
11/16/2007 11/19/2007
12/07/2007 12/07/2007
12/14/2007 12/28/2007
07/14/2008
12/27/2011 12/28/2011

254 Letter by City Of New York (Bowe, Martin) (Entered: 11/01/2007)
255 ENDORSED ORDER re 254 Letter filed by City Of New York. Application granted. Status report due 11/15/07. Ordered by Judge Roanne L. Mann on 11/01/07. (Maynard, Pat) (Entered: 11/02/2007)
256 Letter by City Of New York (Bowe, Martin) (Entered: 11/16/2007)
257 ENDORSED ORDER re 256 Letter filed by City Of New York. Application granted. Ordered by Magistrate−Judge Roanne L. Mann on 11/19/07. (Maynard, Pat) (Entered: 11/19/2007)
258 MOTION for Extension of Time to File by City Of New York. (Bowe, Martin) (Entered: 12/07/2007)
259 ENDORSED ORDER granting 258 Motion for Extension of Time to File status letter to the Court no later than 12/14/07. Ordered by Magistrate Judge Roanne L. Mann on 12/07/07. (Maynard, Pat) (Entered: 12/07/2007)
260 Letter regarding settlement by A.C., D.D. (Maazel, Ilann) (Entered: 12/14/2007)
261 STIPULATION AND ORDER of Settlement and Discontinuance. Dfts agree to pay pltff's by checks made payable to Emery Celli Brinkerhoff &Abady LLP, as attorney for pltff D.D. the sum of $45,000 and (2) Emery Celli Brinkerhoff &Abady LLP, as attorney for pltff A.C. the sum of $30,000. (Ordered by Senior Judge David G. Trager on 12/21/07) (Piper, Francine) (Entered: 12/28/2007)
262 STIPULATION AND ORDER: defendants are to pay the attorney's fees and expenses in the total amount of 3,000.00.. Ordered by Senior Judge David G. Trager on 7/11/2008. (Lagana, Michael) (Entered: 07/14/2008)
263 STIPULATION and Proposed Order by Richard P. Mills (Banks, Steven) (Entered: 12/27/2011)
264 STIPULATION AND ORDER : In full satisfaction of any and all present or future claims by plaintiffs in this action for attorneys fees and expenses: (i) Defendant City of New York shall pay to plaintiffs counsel Emery Celli Brinckerhoff &Abady LLP, the sum of $1,434.60 and (ii) the State of New York shall pay to plaintiffs counsel Emery' Celli,'Brinckerhoff, &Abady LLP the sum of $717.30.. Ordered by Magistrate Judge Roanne L. Mann on 12/28/2011. (Marziliano, August) (Entered: 12/28/2011)