UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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In the Matter of the Application of C.B. on behalf of Z.G. 

her minor child, 

Plaintiff,

-againstDEPARTMENT OF EDUCATION OF THE CITY OF 

NEW YORK, 

Defendant.

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DEFENDANT’S RESPONSE 

TO PLAINTIFF’S LOCAL 

RULE 56.1 STATEMENT OF 

UNDISPUTED FACTS 

07 CV 3419 (AKH) (THK) 

Pursuant to Rule 56.1 of the Local Civil Rules of this Court, defendant’s response 

to Plaintiff’s Statement of Uncontested Facts Pursuant to Local Rule 56.1 (“Plaintiff’s 

Statement”) is set forth below: 

1. Defendant admits the facts set forth in paragraph “1” of Plaintiff’s 

Statement. 

2. In response to paragraph “2” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts set forth therein, but defendant admits that Z.G. 

(the “Student”) received high marks in the third grade, see Exhibit (“Exh.”) 16 at 1-2, and 

respectfully refers the Court to the transcript cited therein for a complete and accurate statement 

of the witness’ testimony and the context in which it was made. See Exhibit (“Exh.”) SRO 2 at 

80-81. 

3. Defendant admits the facts set forth in paragraph “3” of Plaintiff’s 

Statement. 

4. In response to paragraph “4” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, but admits that the Student 

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was diagnosed with bipolar disorder, and respectfully refers the Court to the transcript cited 

therein for a complete and accurate statement of the witnesses’ testimony and the context in 

which it was made. See Exh. C at 1; Exh. SRO 2 at 16, 80. 

5. In response to paragraph “5” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 18. 

6. In response to paragraph “6” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 86-87. 

7. In response to paragraph “5” of Plaintiff’s Statement, defendant admits 

that it did not inform plaintiff that it provides services to students with special education needs, 

but defendant respectfully avers that it has no obligation to so inform parents of students who are 

not disabled under the Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. § 

1400 et seq. 

8. Defendant admits the facts set forth in paragraph “8” of Plaintiff’s 

Statement. 

9. In response to paragraph “9” of Plaintiff’s Statement, defendant denies the 

facts as set forth therein, and respectfully refers the Court to the exhibit cited therein for a 

complete and accurate statement its contents. See Exh. C at 1. 

10. In response to paragraph “10” of Plaintiff’s Statement, defendant admits 

that Dr. Austin testified that she was still seeing the Student as of May 5, 2006, see Exh. SRO 2 

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at 14, but defendant does not have sufficient information to believe that this continues “to date.” 

Defendant respectfully refers the Court to the exhibit cited therein for a complete and accurate 

statement its contents and the transcript cited therein for a complete and accurate statement of the 

witness’ testimony and the context in which it was made. See Exh. C at 1; Exh. SRO 2 at 14. 

11. In response to paragraph “11” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to transcript cited therein for a complete and accurate statement of the witness’ testimony 

and the context in which it was made. See Exh. SRO 2 at 88. 

12. In response to paragraph “12” of Plaintiff’s Statement, defendant admits 

that Dr. Faedda opined that the Student would benefit from the cited accommodations, and 

respectfully refers the Court to the exhibit cited therein for a complete and accurate statement its 

contents and the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. C at 1; Exh. SRO 2 at 88, 90-92. 

13. In response to paragraph “13” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 89. 

14. Upon information and belief, defendant admits the facts set forth in 

paragraph “14” of Plaintiff’s Statement. 

15. In response to paragraph “15” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, but admits that plaintiff 

referred the Student to the Committee on Special Education (“CSE”) in October, 2005. Exh. 3 at 

1. 

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16. Defendant admits the facts set forth in paragraph “16” of Plaintiff’s 

Statement. 

17. Defendant admits the facts set forth in paragraph “17” of Plaintiff’s 

Statement. 

18. In response to paragraph “18” of Plaintiff’s Statement, defendant admits 

that Dr. Jackson opined as set forth therein, and respectfully refers the Court to the exhibit cited 

therein for a complete and accurate statement its contents. See Exh. C at 1-10. 

19. In response to paragraph “19” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, but admits that Dr. Faedda opined that the Student was “fragile” and 

that she would benefit from “smaller classes, increased 1:1 teaching, greater flexibility with 

academic activities, and increased support when her symptoms interfere with school and social 

functioning.” Exh. C at 1. Defendant denies that plaintiff has established that the Student was 

disabled under the IDEA and thus an appropriate school under the law did not need to provide 

any special education services. See 20 U.S.C. § 1400(d)(1)(A); 20 U.S.C. § 1401(9). 

20. In response to paragraph “20” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the exhibit cited therein for a complete and accurate statement of its contents. See Exh. 

C at 1. 

21. Defendant admits the facts set forth in paragraph “21” of Plaintiff’s 

Statement. 

22. In response to paragraph “22” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the exhibit cited therein for a 

complete and accurate statement of its contents and the transcript cited therein for a complete 

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and accurate statement of the witnesses’ testimony and the context in which it was made. See

Exh. C at 1; Exh. SRO 2 at 14, 16, 154-155, 161. 

23. There is no paragraph “23” in Plaintiff’s Statement. 

24. In response to paragraph “24” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, but admits that the CSE 

classified the Student as non-handicapped and recommended a general education program with 

no special education services. Exh. 11 at 1-7. 

25. In response to paragraph “25” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 157-61, 165-67, 170. 

26. In response to paragraph “26” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 157-61, 165-67, 170. 

27. In response to paragraph “27” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, but admits that the Student’s teacher, Ms. Terpening testified that 

she moved from teaching the 4th grade to teaching the 5th grade and that the Student was placed 

in Ms. Terpening’s 5th grade class. See Exh. SRO 2 at 164. Defendant denies that this had 

anything to do with any potential response to switching buildings, as the Student switched 

buildings when she moved from third to fourth grade. See Exh. SRO 2 at 163. Defendant 

respectfully refers the Court to the transcript cited in paragraph “27” of Plaintiff’s Statement for 

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a complete and accurate statement of the witness’ testimony and the context in which it was 

made. See Exh. SRO 2 at 161. 

28. In response to paragraph “28” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 160-61, 166. 

29. In response to paragraph “29” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 158, 160-61. 

30. In response to paragraph “30” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See SRO Exh. 2 at 158, 160-61. 

31. In response to paragraph “31” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 158. 

32. In response to paragraph “32” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 158. 

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33. In response to paragraph “33” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 192. 

34. In response to paragraph “31” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the exhibits cited therein for a 

complete and accurate statement their contents and the transcript cited therein for a complete and 

accurate statement of the witnesses’ testimony and the context in which it was made. See Exh. B 

at 1-9; Exh. C at 1; Exh. SRO 2 at 29, 174. Defendant also respectfully avers that the Student 

has made educational progress at every level represented in the record. See Exh. 8 at 2-14; Exh. 

15 at 1; Exh. 16 at 1-2; Exh. 17 at 1-2. 

35. Upon information and belief, defendant admits the facts set forth in 

paragraph “35” of Plaintiff’s Statement. 

36. In response to paragraph “36” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, as no citation of support is 

provided. 

37. In response to paragraph “37” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 26-29. 

38. In response to paragraph “38” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, but admits that Dalton offers 

an accelerated program, and respectfully refers the Court to the transcript cited therein for a 

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complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 174-76, 193-94. 

39. In response to paragraph “39” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 17. 

40. In response to paragraph “40” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 17. 

41. In response to paragraph “41” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 17. 

42. In response to paragraph “42” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See SRO Exh. 2 at 18. 

43. In response to paragraph “43” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See SRO Exh. 2 at 25. 

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44. In response to paragraph “44” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See SRO Exh. 2 at 17, 23. 

45. In response to paragraph “45” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See SRO Exh. 2 at 26. 

46. In response to paragraph “46” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See SRO Exh. 2 at 29, 48-51. 

47. In response to paragraph “47” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witnesses’ 

testimony and the context in which it was made. See Exh. SRO 2 at 52, 89. Defendant also 

respectfully avers that the Student has made educational progress at every level represented in 

the record, including the gifted program at P.S. 166. See Exh. 8 at 2-14; Exh. 15 at 1; Exh. 16 

at 1-2; Exh. 17 at 1-2. 

48. In response to paragraph “48” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witnesses’ 

testimony and the context in which it was made. See Exh. SRO 2 at 69, 80-81. Defendant also 

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respectfully avers that the Student excelled while in public school, demonstrating that even if 

these facts were true as stated, these symptoms did not adversely affect her educational 

performance. See Exh. 15 at 1; Exh. 16 at 1-2; Exh. 17 at 1-2. 

49. In response to paragraph “49” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 82. Defendant also 

respectfully avers that the Student excelled while in public school, demonstrating that even if 

these facts were true as stated, these symptoms did not adversely affect her educational 

performance. See Exh. 15 at 1; Exh. 16 at 1-2; Exh. 17 at 1-2. 

50. In response to paragraph “50” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 108. 

51. In response to paragraph “51” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witnesses’ testimony and the context in which it was 

made. See Exh. SRO 2 at 113-14, 122-23, 156-57, 160. Defendant denies that these facts as 

stated establish that Dalton provided an appropriate program under the second prong of the 

Burlington/Carter criteria. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985), 

Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). 

52. In response to paragraph “52” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

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Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 157. 

53. In response to paragraph “53” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 158. 

54. In response to paragraph “54” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 160-61. 

55. In response to paragraph “55” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 167. 

56. In response to paragraph “56” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 174. 

57. In response to paragraph “57” of Plaintiff’s Statement, defendant denies 

the facts as set forth therein, and respectfully refers the Court to the transcript cited therein for a 

complete and accurate statement of the witness’ testimony and the context in which it was made. 

See Exh. SRO 2 at 174-76. 

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58. In response to paragraph “58” of Plaintiff’s Statement, defendant does not 

have sufficient information to believe the facts as set forth therein, and respectfully refers the 

Court to the transcript cited therein for a complete and accurate statement of the witness’ 

testimony and the context in which it was made. See Exh. SRO 2 at 188. 

Dated: November 2, 2007 

New York, New York 

MICHAEL A. CARDOZO 

Corporation Counsel of the 

 City of New York 

Attorney for Defendant 

100 Church Street, Room 2-179 

New York, New York 10007 

212-788-0889 

By: /s 

Andrew J. Rauchberg (AR 2179) 

Assistant Corporation Counsel 

To: Neal H. Rosenberg, Esq. 

 Law Offices of Neal Howard Rosenberg 

 Attorney for Plaintiff 

 9 Murray Street, Suite 4 West 

 New York, New York 11235 

 212-732-9450 

 (via ECF) 

 

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