T.Y. et al v. New York City Department of Education

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the annexed Memorandum and Order, the court adopts Judge Levy's R&R in its entirety. Defendants cross-motion for summary judgment is DENIED. Plaintiffs' motion for summa ry judgment is GRANTED and plaintiffs shall be reimbursed as follows: full reimbursement for T.Y.s 2012-2013 Rebecca School tuition, T.Y.'s supplemental speech therapy, and T.Y.'s 1:1 paraprofessional and transportation costs. Plaintiffs a re granted leave to submit an application for attorneys' fees that complies with 20 U.S.C. § 1415(i)(3)(C) within 21 days of judgment. Defendant may file any objections to plaintiffs' fee application within 21 days thereof. The Clerk of Court is respectfully directed to enter judgment in favor of plaintiffs and close this case. Ordered by Judge Kiyo A. Matsumoto on 9/30/2016. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
T.Y. AND K.Y., Individually and On,
Behalf of Their Son T.Y.,
ORDER ADOPTING
REPORT AND
RECOMMENDATION

Plaintiffs,
-againstNEW YORK CITY DEPARTMENT OF EDUCATION,

15-CV-1508(KAM)(RML)

Defendant.
--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:
Presently

before

the

court

is

the

Report

and

Recommendation of United States Magistrate Judge Robert M. Levy
(“R&R”),

filed

on

August

26,

2016.

(ECF

No.

29).

The

R&R

recommends that plaintiffs’ motion for summary judgment be GRANTED
and defendant’s cross motion for summary judgment be DENIED. (R&R
at

29).

Defendant,

the

Department

of

“defendant”), has not objected to the R&R.

Education

(“DOE”

or

Plaintiffs T.Y. and

K.Y. (“plaintiffs” or “parents”) request that the court adopt and
affirm the R&R but “raise and preserve” three objections.
No. 30).

(ECF

For the reasons set forth below and upon de novo review

of the record, the court addresses plaintiff’s three objections
and ADOPTS the Report and Recommendation in its entirety.

Background
Plaintiffs brought this action on behalf of their child,
T.Y. (“T.Y.”) 1 against the New York City Department of Education
under the Individuals with Disabilities Education Act (“IDEA”) 20
U.S.C. §§ 1400, et seq. seeking review of the December 23, 2014
administrative decision of State Review Officer Justyn P. Bates
(the “SRO”).

(See Complaint, dated March 23, 2015, ECF No. 1;

Decision No. 13-049 of State Review Officer Justyn P. Bates, dated
Dec. 23, 2014 (“SRO Decision”), ECF No. 17-2).

The SRO, in its

December 23, 2014 Decision, reversed the determination of New York
State Impartial Hearing Officer Christine Moore (the “IHO”), and
concluded that the individualized education plan (“IEP”) that the
DOE developed for T.Y. was sufficient to provide T.Y. with a free
and appropriate public education (“FAPE”) as required under IDEA.
(See SRO Decision, ECF No. 17-2 at 34). 2
On September 30, 2015, the parents moved for summary
judgment, and on November 4, 2015, the DOE opposed and crossed
moved for summary judgment (the “Motions”).
21).

(ECF Nos. 15-17, 20-

Plaintiffs filed their memoranda opposing the DOE’s cross-

motion and in further support of their motion for summary judgment

1

In this Order and the R&R, T.Y. refers to the minor child.

2 Citations to page numbers refer to the page numbers assigned by the Official
Court Electronic Filing System, ECF.

2

on December 1, 2015.

(ECF No. 22).

On December 4, 2015, the court

referred the Motions to Honorable Magistrate Judge Robert M. Levy
for a report and recommendation.

(Order, dated December 4, 2015).

The DOE filed its reply brief on December 16, 2015.

(ECF No. 24).

Judge Levy heard oral argument from the parties on February 11,
2016, and on August 26, 2016, Judge Levy issued his Report and
Recommendation recommending that the court grant the parents’
motion for summary judgment, and deny the DOE’s cross-motion for
summary judgment.

(Report and Recommendation (“R&R), ECF No. 29).

Judge Levy also recommended that plaintiff’s counsel be granted
leave to submit an application for attorneys’ fees and costs.
The R&R notified the parties that any objections to the
R&R must be filed within fourteen days of receipt of the R&R.
(Id.).

By letter dated September 9, 2016, plaintiffs “raised and

preserved

objections”

that

the

R&R:

(1)

lacked

a

finding

of

cumulative violations by the DOE in failing to provide T.Y. with
a

FAPE;

(2)

lacked

a

specific

finding

regarding

school

placement/implementation as determined by the IHO; and (3) did not
expressly include in the reimbursement award, reimbursement for
T.Y.’s

2012-2013

Rebecca

School

tuition,

T.Y.’s

supplemental

speech therapy, T.Y.’s 1:1 paraprofessional and transportation
costs.

(Plaintiff’s Objections to R&R (“Objections”), ECF No. 30

at 3).

Defendant did not object to the R&R.
3

Discussion
For the reasons stated herein, the Court ADOPTS the R&R
in its entirety.
I.

Standards of Review
A district court reviews those portions of a Report and

Recommendation to which a party has timely objected under a de novo
standard of review and “may accept, reject, or modify, in whole or
in part, the findings or recommendations . . . .”
§ 636(b)(1)(C).

Where

no

objections

to

the

28 U.S.C.
Report

and

Recommendation have been filed, however, the district court “need
only satisfy itself that that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985)).
sections

of

a

“The district court is permitted to adopt those

magistrate

judge’s

report

to

which

no

specific

objection is made, so long as those sections are not facially
erroneous.”

Sasmor v. Powell, No. 11-CIV-4645 (KAM) (JO), 2015 WL

5458020, at *2 (E.D.N.Y. Sept. 17, 2015) (citation and internal
quotation marks omitted).
II.

Plaintiff’s Objections
Plaintiffs request that the court affirm and adopt the

R&R, and “expressly embrace” Judge Levy’s specific factual and legal
findings, but object to the R&R on three specific grounds as
4

described supra,

and discussed

below.

This court nonetheless

conducted a de novo review of the record and reaches the same
conclusions as Judge Levy.
adopts

Judge

Levy’s

Accordingly, the court affirms and

thorough

and

well-reasoned

Report

and

Recommendation in its entirety.
The court presumes familiarity with the underlying facts
and procedural history as set forth in greater detail in Judge
Levy’s R&R.

(R&R, ECF No. 29 at 4-17).

Plaintiff first objects to

the R&R and argues that Judge Levy “could have and should have made
additional findings pursuant to [the] cumulative violations test.”
(Objections, ECF No. 30 at 3).

Plaintiffs argue when viewed with

the other serious substantive FAPE violations that Judge Levy found,
Judge Levy should have also found that the DOE’s failure to develop
a Functional Behavioral Analysis (“FBA”), failure to create a
Behavioral Intervention Plan (“BIP”), failure to expressly consider
T.Y.’s need for

assistive technology, failure

to offer parent

training and counseling, and failure to plan for T.Y. to transition
to a new program and placement further compounded the DOE’s overall
failure to provide T.Y. with a FAPE.

(Id.).

Second, plaintiffs

request that the court adopt the IHO’s decision and credibility
findings relating to the proper implementation of the IEP at the
recommended placement.

(Id.).

Third, plaintiffs also ask that the

court specify in any reimbursement award that the parents are
5

entitled

to

reimbursement

tuition,

T.Y.’s

for

supplemental

T.Y.’s
speech

2012-2013
therapy,

paraprofessional and transportation costs.

Rebecca
and

school

T.Y.’s

1:1

(Id.).

First, the court finds upon de novo review, as Judge
Levy

did,

that

the

SRO’s

finding

that

the

IEP

sufficiently

addressed the behavioral concerns in the FBA and the BIP was
logically sound and adequately supported by the record.
No. 29 at 23; SRO Decision, ECF No. 17-2 at 22-24). 3

(R&R, ECF

Accordingly,

Judge Levy’s deference to the SRO was proper and the court adopts
his findings.

M.W. ex rel. S.W. v. N.Y. City Dep't of Educ., 725

F.3d 131, 138–39 (2d Cir. 2013) (Deference must be given “to the
administrative decision particularly where the state officer’s
review has been thorough and careful.”) (citation and internal
quotation marks omitted).
Similarly, the court finds, as Judge Levy did, that the
SRO’s findings as to T.Y.’s need for assistive technology were
proper. (R&R, ECF No. 29 at 23-25). The IEP described T.Y.’s
communication ability and his use of assistive technology to
communicate.

(IEP, ECF No. 28-14 at 1).

It also set annual and

short term communication goals that referenced his use of assistive
technology.

(Id. at 9).

The SRO found that the IEP was consistent

3 Citations to page numbers refer to the page numbers assigned by the Official
Court Electronic Filing System, ECF.

6

with the information regarding T.Y.’s communication needs that was
before the Committee on Special Education (“CSE”) and the DOE
properly considered T.Y.’s communication needs.
ECF

No.

17-2

at

determination
technology

22).

that

and

This

the

T.Y.’s

supported by the record.

court

SRO’s

agrees

findings

communication

(SRO Decision,

with

Judge

regarding

program

were

(R&R, ECF No. 29 at 24-25).

Levy’s

assistive
proper

and

Accordingly,

the court adopts Judge Levy’s finding.
Plaintiffs further argue that Judge Levy should have
found that the IEP failed to adequately plan for T.Y. to transition
to a new program and placement.

(Objections, ECF No. 30 at 3).

The SRO found, and Judge Levy agreed, that the IDEA did not require
that the IEP include a “transition plan” for T.Y.’s transfer to a
new school. (R&R, ECF No. 29 at 26).
court

finds

the

IEP’s

failure

to

Upon de novo review, the

include

a

plan

for

T.Y.’s

transition to a new school was not a procedural error because T.Y.
was only 10 years old when the IEP was prepared.

See F.L. v. New

York City Dep’t of Educ., No. 15-CV-520 (KBF), 2016 WL 3211969, at
*8 (S.D.N.Y. June 8, 2016) (The IDEA requires the IEP to include
a transition plan for students 16 years or older; New York state
extends this requirement to students 15 and older.) (citing 20
U.S.C.

§

1414(d)(1)(A)(i)(VIII)(aa);

200.4(d)(2)(ix)(b)).

8

N.Y.C.R.R.

§

Further, the court finds, as the SRO and
7

Judge Levy did, that the IEP properly considered T.Y.’s needs
relating to transitions from one activity to another during the
school day.

(R&R, ECF No. 29 at 26).

Accordingly, the court

adopts Judge Levy’s findings.
Next, the plaintiffs object to Judge Levy’s deference to
the SRO’s finding that the IEP’s failure to provide for parental
training and counseling did not result in a denial of a FAPE.
(Objections, ECF No. 30 at 3).

Upon de novo review, the court

agrees with the SRO’s and with Judge Levy’s reasoning.

The Second

Circuit has made clear that “[t]hough the failure to include parent
counseling

in

the

IEP

may,

in

some

cases

(particularly

when

aggregated with other violations), result in a denial of a FAPE,
in

the

ordinary

case

that

failure,

sufficient to warrant reimbursement.”

standing

under

New

York

State

is

not

R.E. v. N.Y. City Dep't of

Educ., 694 F.3d 167, 191 (2d Cir. 2012).
entitled

alone,

Here, plaintiffs are

regulations,

as

parents

of

an

autistic child, to parent training and counseling regardless of
whether

the

IEP

recommends

it.

200.13(d)); M.W., 725 F.3d at 142).

See

id.

(citing

8

NYCRR

§

Further, the court finds that

the parents had a full opportunity to participate in the IEP
process, which inter alia, resulted in an IEP that lacked parental
counseling.

Procedural violations will not amount to denial of a

FAPE where “the procedural deficiencies were formalities and the
8

record shows that the Parents were afforded a full opportunity to
participate in the IEP process.”

R.B. v. New York City Dep’t of

Educ., No. 15-CV-6331 (DLC), 2016 WL 2939167, at *9 (S.D.N.Y. May
19, 2016); see also F.L. ex rel. F.L. v. New York City Dep’t of
Educ., 553 F. App’x 2, 6-7 (2d Cir. 2014).

Accordingly, the court

agrees with the SRO and Judge Levy, and finds that the IEP’s
failure to provide for parent training and counseling did not deny
T.Y. a FAPE.

(SRO’s Decision, ECF No. 17-2 at 27-28; R&R, ECF No.

29 at 25-26).
Plaintiffs’

second

placement/implementation
viewing

the

objection

issue

cumulative

should

effect

(Objections, ECF No. 30 at 3).

of

is

also
the

that
be

the

school

considered

DOE’s

when

violations.

Judge Levy determined that the IEP

was substantively inadequate and, therefore, properly declined to
reach the issue of whether the IEP could be properly implemented
at the proposed placement site.

(R&R at 35 n.18).

agrees with Judge Levy’s sound reasoning.

The court

“A substantive attack

on a child’s IEP that is couched as a challenge to the adequacy of
the proposed placement is [] not a permissible challenge—those
types of challenges do not relate to the placement’s capacity to
implement

the

IEP

but

to

the

appropriateness

of

the

IEP’s

substantive recommendations, which must be determined by reference
to the written IEP itself.”

J.M. v. New York City Dep’t of Educ.,
9

No. 15-CV-353 (VEC), 2016 WL 1092688, at *8 (S.D.N.Y. Mar. 21,
2016) (citing M.O., 793 F.3d at 245).
review,

that

because

the

IEP

was

The court finds, on de novo
substantively

deficient,

plaintiffs’ arguments as to placement/implementation of the IEP
need not be addressed. Thus, the court finds, as discussed herein,
that the issues plaintiffs identified in their objections, whether
considered individually or cumulatively, did not result in a denial
of a FAPE.

See F.L. ex rel. F.L., 553 F. App’x at 7 (finding that

procedural errors did not cumulatively result in a denial of FAPE).
Further, the court, upon de novo review, finds as Judge
Levy did, that plaintiffs met their burden of establishing that
the Rebecca School was an appropriate placement for T.Y. during
the 2012-2013 school year.

(R&R, ECF No. 29 at 37); see P.K. ex

rel. S.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 115
(E.D.N.Y. 2011) (“The parents bear the burden of establishing that
the placement they selected was an appropriate one.”) (citing
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d
Cir. 2007)).

The IHO 4 relied on T.Y.’s teacher and the program

director at the Rebecca School, who provided credible testimony
about the educational and therapeutic services that T.Y. received

4 The SRO did not address whether the Rebecca School was an appropriate placement
for T.Y. during the 2012-2013 school year or whether the equities weighed in
favor of a reimbursement award because the SRO determined that the DOE offered
T.Y. a FAPE. (SRO Decision, ECF No. 17-2 at 33).

10

during the 2012-2013 school year, when finding that the Rebecca
School was an appropriate placement for T.Y. (IHO’s Decision, ECF
No 17-1 at 23-26).

The court finds, as Judge Levy did, that the

educational and therapeutic services that T.Y. received at the
Rebecca School during the 2012-2013 school year were “specifically
designed to meet [T.Y.’s] unique needs,” and therefore, agrees
with the IHO that the Rebecca School was an appropriate unilateral
placement for T.Y. during the 2012-2013 school year.

A.D. v. Bd.

Of Educ. Of City Sch. Dist. Of City of New York, 690 F. Supp. 2d
193, 206 (S.D.N.Y. 2010).
Finally, upon de novo review, the court finds, as Judge
Levy did, that the IHO’s findings as to reimbursement for T.Y.’s
tuition and related services for the 2012-2013 school year were
proper and, therefore, adopts Judge Levy’s sound and well-reasoned
decision in its entirety.
Conclusion
For the foregoing reasons, the court ADOPTS Judge Levy’s
R&R in its entirety. Defendant’s cross-motion for summary judgment
is DENIED.

Plaintiffs’ motion for summary judgment is GRANTED and

plaintiffs shall be reimbursed as follows: full reimbursement for
T.Y.’s

2012-2013

Rebecca

School

tuition,

T.Y.’s

supplemental

speech therapy, and T.Y.’s 1:1 paraprofessional and transportation
costs.

Plaintiffs are granted leave to submit an application for

11

attorneys’ fees that complies with 20 U.S.C. § 1415(i)(3)(C) within
21

days

of

judgment.

Defendant

may

file

any

plaintiffs’ fee application within 21 days thereof.

objections

to

The Clerk of

Court is respectfully directed to enter judgment in favor of
plaintiffs and close this case.

SO ORDERED.
Dated:

September 30, 2016
Brooklyn, New York

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

12