V.A. v. City of New York et al

Filing 48

MEMORANDUM & ORDER: The SRO's decision dismissing the appeal is vacated. V.A.'s motion for summary judgment 32 is granted, and the City's cross-motion 37 is denied, on all issues herein discussed except for the appropriatene ss of K.A.D.'s unilateral placement at the Lowell School and the balance ofequities. The IHO's conclusions regarding the appropriateness of K.A.D.'s placement are remanded to the SRO to review in the first instance. On remand, the SRO should also determine whether V.A. has met her burden on the balance of the equities. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 5/10/2022. (Guy, Alicia)

Case 1:20-cv-00989-EK-RML Document 48 Filed 05/10/22 Page 1 of 37 PageID #: 2944

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
V.A., individually and as mother and
natural guardian of K.A.D.,
Plaintiff,

MEMORANDUM & ORDER
20-CV-0989(EK)(RML)

-againstCITY OF NEW YORK and THE NEW YORK
CITY DEPARTMENT OF EDUCATION,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Plaintiff V.A. — the parent of a child with special
educational needs — brought this action against the City of New
York and its Department of Education (collectively, the “City”)
under the Individuals with Disabilities in Education Act, 20
U.S.C. §§ 1400–1482.

She seeks review of the administrative

decision denying her request for retroactive tuition
reimbursement.

Before this Court are the parties’ cross-motions

for summary judgment.

V.A. argues that she is entitled to

reimbursement for the tuition she paid for her child, K.A.D.,
for the 2018–19 school year because the City failed to timely
offer K.A.D. a “free appropriate public education” as required
by the IDEA.

She contends both (1) that the City failed timely

to mail one of the documents comprising such an offer, thus

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violating the IDEA’s procedures, and (2) that the offer was
substantively inadequate.
Because the City has not shown that the mailing was
timely made, I grant in part V.A.’s motion for summary judgment,
deny the City’s cross-motion in part, and remand for the SRO to
consider in the first instance (1) whether the school at which
V.A. placed K.A.D. that year was an appropriate placement and
(2) whether the equities favor relief.
I. Background
The IDEA requires any school district that receives
funding assistance under the Act to provide a “free appropriate
public education” (FAPE) to every child with a disability.

20

U.S.C. § 1412(a)(1)(A); see also id. § 1401(9) (defining FAPE).
The New York City Department of Education (DOE) is subject to
the IDEA’s requirements.

See Defs.’ Local Civil Rule 56.1

Statement (“City 56.1”) ¶ 3, ECF No. 38. 1
“To ensure that qualifying children receive a FAPE, a
school district must create an individualized education program
(IEP) for each such child.”
F.3d 167, 175 (2d Cir. 2012).

R.E. v. N.Y.C. Dep’t of Educ., 694
The IEP is a “written statement

that sets out the child’s present educational performance,

1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.

2

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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.”

It has been described as the “centerpiece of

the IDEA’s education delivery system.”

Murphy v. Arlington

Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002).
A.

K.A.D.’s IEP and the School Location Letter
V.A. lives with K.A.D. in Queens, New York.

Am. NYSED

SRO R. (“R.”) at 569:1–12, 583:23–584:7, 679, ECF No. 22.
K.A.D. has been receiving special education services from the
City since she repeated kindergarten in 2010–2011.
3, ECF No. 47-1; R. at 34.

She was first diagnosed with a

specific learning disability in reading in 2012.
3.

SRO Decision

SRO Decision

In seventh grade, the school year prior to the year at

issue, K.A.D. attended the Lowell School, a “nonpublic school
that has been approved . . . as a school with which districts
may contract for the instruction of students with disabilities.”
SRO Decision 3 n.2; R. at 720.

DOE has not paid for tuition for

this year; rather, V.A. paid the enrollment deposit, and her
contract with the Lowell School obligates V.A. to pay the
remainder of the tuition.

R. at 592:1–595:4.

On June 8, 2018, the City’s Committee on Special
Education 3 (“CSE 3”) developed K.A.D.’s Individualized
Education Program (“IEP”) for the 2018–19 school year (eighth

3

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grade).

R. at 766–82.

The IEP recommended that she be placed

in a “12:1 + 1 class” for mathematics, English and language
arts, social studies, and science in a DOE non-specialized
school.

R. at 774, 779.

(Although the record does not make it

clear, a “12:1 + 1 class” appears to refer to a class consisting
of “twelve students, one teacher, and one paraprofessional.”
Jennifer D. v. N.Y.C. Dep’t of Educ., 550 F. Supp. 2d 420, 425
(S.D.N.Y. 2008).)

The IEP also recommended weekly or semiweekly

special education teacher support services in mathematics,
counseling, occupational therapy, physical therapy, and speechlanguage therapy, as well as assistive technology on an asneeded basis.

R. at 774–75.

The IEP noted that enrollment at a

“specialized” school was considered but rejected, on the basis
that K.A.D. “does not need such intensive specialized
instruction to address her educational needs, at this time.”
at 780–81.

R.

It also stated a “projected date IEP is to be

implemented” of September 3, 2018.

R. at 766.

The IEP did not, however, identify the specific school
at which the services would be provided.

Instead, the City

claims that on July 12, 2018, placement officer Dinh Lu-Berio
mailed a “school location letter” to V.A. containing this
information.

Defs.’ Mem. of Law in Supp. of Their Cross-Mtn.

for Summ. J. and in Opp. to Pl.’s Mot. for Summ. J. (“City Br.”)

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17–18, ECF No. 40. 2

V.A. claims that she never received this

letter or any other communication from the City indicating the
school to which K.A.D. would be designated for the 2018 school
year.

SRO Decision 25; Pl. Mot. for Summ. J. (“Pl. Br.”) 14,

ECF No. 32-2.
During the administrative proceedings, the City
produced a copy of a school location letter addressed to V.A.
R. at 783–84; see also R. at 158:2–10.

This letter specifies

placement at the Collaborative Arts Middle School in Queens for
K.A.D.

Id. at 783.

Despite the claim that Lu-Berio mailed it

on July 12, the letter bears a date of September 9, 2018.
see Pl. Br. 14; City Br. 17.
2018–19 school year began.

Id.;

This date was four days after the
See R. at 603:23–605:8 (parties

stipulating that September 5, 2018, was the beginning of the
school year).

The City says this date is erroneous and resulted

from an otherwise unspecified “computer programming error.”
Defs.’ Letter Dated Sept. 17, 2021 (“City Letter”), at 2, ECF
No. 44.

The City argues that SESIS, a City student-information

database, “generated dates for documents based on the start date
of each school year, which CSE staff could not modify.”
2.

Id. at

But as stipulated before the IHO, September 5, 2018 was the

2 Page numbers in citations to briefs refer to ECF pagination rather
than the documents’ native page numbers.

5

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first day of school, not September 9 (which was a Sunday).

The

City thus has offered no logical explanation for why September 9
was printed on the letter.
In support of its claim that Lu-Berio actually mailed
the letter in June, the City relies on Lu-Berio’s testimony and
a documentary record from the SESIS database.

R. at 798–804;

see also R. at 605:9–611:12; City Letter 2 n.3. 3

The SESIS

record in question reports that on July 12, 2018, Lu-Berio
mailed a letter related to a “prior notice package for
placement,” R. at 799 (more on that package below).
V.A. says that without a school designation from the
City, she sought a “unilateral placement” for K.A.D. at the
Lowell School in August 2018.
56.1”) ¶ 2, ECF No. 32-1.

Pl.’s Rule 56.1 Statement (“Pl.

As discussed more fully below, the

IDEA entitles the parents of learning-disabled children to
reimbursement for private tuition under certain circumstances.
See 34 C.F.R. § 300.148(c)–(e).

To obtain such reimbursement,

and as relevant here, parents are required to give written
notice to the public agency at least ten business days “prior to

The City describes SESIS as “DOE’s computerized Special Education
Student Information System, which is a DOE record-keeping system wherein
special education records are stored, and which supports users in completing
special education workflow processes from referral through IEP development
and implementation.” City Letter 2 n.3.
3

6

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the removal of the child from the public school.”

Id.

§ 300.148(d)(1).
Accordingly, in August 2018, V.A. (through counsel)
sent a letter by email to the CSE, indicating that she intended
unilaterally to place K.A.D. at the Lowell School for 2018–19
school year, beginning September 4, 2018.

R. at 676–78. 4

In the

letter, V.A. challenged the IEP on both procedural grounds, such
as the composition of the IEP team, and substantive grounds,
such as the alleged failure adequately to consider K.A.D.’s
specific needs.

Id.

The letter did not mention that V.A. was

still awaiting news of K.A.D.’s school location, but nor did it
give any indication that she had received the school location.
V.A.’s letter did not mention Collaborative Arts Middle School,
the school named in the location letter that the City
purportedly mailed, at all.
In another letter dated September 10, 2018, V.A.
stated that the CSE had “acknowledged” “transmission” of the
letter.

R. at 680.

Although this acknowledgement does not

appear to be contained in the record, the City does not contest
this statement.

Nor does the City claim that a new school

The record does not reveal the exact date on which this letter was
sent. Although it is dated August 17, 2019, V.A.’s counsel subsequently
stated that it was “emailed to the CSE on or about August 19, 2018.” R. at
680. Regardless, the City does not contend that V.A.’s ten-day notice was
untimely.
4

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location letter, or any other correspondence identifying the
school, was mailed in response to V.A.’s letter.

See R. at

632:12–635:17.
V.A. then enrolled K.A.D. at the Lowell School for the
2018–19 school year.

R. at 593:6–8.

Tuition for that year cost

$41,659, plus or minus any adjustment that the New York State
Education Department would set for that year.
B.

R. at 683. 5

Local and State Administrative Proceedings
On September 28, 2018, V.A. filed a due process

complaint with the New York City Department of Education,
seeking reimbursement for the full amount of 2018–19 tuition as
well as attorney’s fees.

R. at 874–78; Pl. 56.1 ¶ 8.

The

complaint triggered the due process procedures of the IDEA.

See

34 C.F.R. § 300.148(b).
The IDEA entitles parents to an “impartial due process
hearing” conducted by an “impartial hearing officer” (IHO), who
is appointed by the City.

20 U.S.C. § 1415(f), (i)(1)(A); 34

C.F.R. § 300.511(a); N.Y. Educ. Law § 4404(1).

A parent may

appeal an adverse decision from the IHO to the state educational

5 Because of financial hardship, V.A. does not appear to have paid the
full amount as of the time of the IHO hearing. R. at 592:1–24. However, the
Lowell School provided a sworn and notarized statement that V.A. contracted
with the school for $41.659.00 of tuition for the 2018–2019 school year, plus
or minus any adjustment made by the State, and V.A. testified that she
remained liable for the unpaid portion of that amount. R. at 593:4–13, 683.
Nor has the City contested this amount. Thus, I treat this amount as the
“cost of [K.A.D.’s] enrollment” that is at issue. 34 C.F.R. § 300.148(b).

8

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agency — in New York, the State Department of Education.

E.F.

v. Adams, No. 21-CV-11150, 2022 WL 601999, at *2 (S.D.N.Y. Mar.
1, 2022).

A state official will then “conduct an impartial

review of the findings and decision.”

20 U.S.C. § 1415(g)(2);

see also id. § 1415(i)(1)(B); 34 C.F.R. § 300.514(b).

The

official conducting such a review is referred to as a “state
review officer” (SRO).

N.Y. Educ. Law § 4404(2).

See generally

M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 225 n.4 (2d Cir.
2012) (explaining the “confusing, alphabet-soup nature of IDEA
cases brought in New York City”).
The IHO heard evidence from seven witnesses, including
DOE employee Dinh Lu-Berio, who testified by telephone.

R. at

611:20–649:23.

Lu-Berio testified that she mailed the letter on

July 12, 2018.

R. at 620:12–17.

I discuss her testimony in

further detail below.
On August 19, 2019, the IHO issued findings of fact
and a decision.

R. at 7–48.

The IHO rejected K.A.D.’s parents’

argument that they had not received the school location letter,
reasoning that they had not “assert[ed] in their ten day notice
that they had not received a site offer” and that “[h]ad they
provided such a notice, the DOE would have been able to cure
that problem.”

R. at 44.

The IHO also determined that the IEP

was substantively adequate and had offered K.A.D. a FAPE.
41–44.

9

R. at

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V.A. timely sought state review of the IHO’s decision.
See R. at 880; see also N.Y. Comp. Codes R. & Regs. tit. 8,
§ 279.4(a).

On November 18, 2018, the SRO issued a decision

dismissing V.A.’s appeal.

SRO Decision 26.

The SRO first

upheld the IHO’s determination that the IEP had provided “an
appropriate setting” for K.A.D. at Collaborative Arts.

Id. at

24.
Turning to the mailing issue, the SRO found that “in
light of the immense . . . size of the district in this case, it
is reasonable to hold that . . . the district was required to
notify the parent where the IEP services would be implemented
before the IEP went into effect as part of its obligations to
implement the student’s services.”

Id. at 24.

However, relying

on Lu-Berio’s testimony, the SRO found that the City was
entitled to “the presumption of mailing and receipt of the
school location letter by the parent” and that “the IHO was free
to accept [Lu-Berio’s] testimony when weighting [sic] evidence
relevant to the issue.”

Id. at 25–26 (citing New York law).

The SRO also reasoned that the IHO reasonably “question[ed]”
V.A.’s failure to raise the lack of a letter in her ten-day
notice.

Id. at 25.
Having exhausted the IDEA’s administrative procedures,

see Mrs. W. v. Tirozzi, 832 F.3d 748, 756 (2d Cir. 1987), V.A.
then timely filed the instant suit seeking review of the SRO’s

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decision.

Compl. 1, ECF No. 1; see 20 U.S.C. § 1415(i)(2)(B);

N.Y. Educ. Law § 4404(3)(a).
II. Jurisdiction
The IDEA grants district courts jurisdiction over
appeals from the findings and decision of an SRO.

20 U.S.C.

§ 1415(i)(1)(B), (2)(A).
III. Standard of Review
“Though the parties in an IDEA action may call the
procedure a motion for summary judgment, the procedure is in
substance an appeal from an administrative determination, not a
summary judgment motion.”

M.H., 685 F.3d at 226.

“The review

is substantive and considers more than whether a material fact
is disputed.”

M.Z. v. N.Y.C. Dep’t of Educ., No. 12-CV-4111,

2013 WL 1314992, at *1 (S.D.N.Y. Mar. 21, 2013).

“[B]asing its

decision on the preponderance of the evidence, [the court] shall
grant such relief as [it] determines is appropriate.”
§ 1415(i)(2)(C)(iii).

20 U.S.C.

“[T]he standard for reviewing

administrative determinations requires a more critical appraisal
of the agency determination than clear-error review but
nevertheless falls well short of complete de novo review.”
M.H., 685 F.3d at 244.
In deciding an IDEA case, a court will “generally
defer to the final decision of the state authorities.”
685 F.3d at 241.

M.H.,

Still, “in policing the states’ adjudication

11

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of IDEA matters,” a court must “determin[e] the weight due any
particular administrative finding.”

Id. at 244.

Because of the

specialized educational considerations involved,
“[d]eterminations regarding the substantive adequacy of an IEP
should be afforded more weight than determinations concerning
whether the IEP was developed according to the proper
procedures.”

Id.

District courts also apply a deferential

standard of review to the IHO’s credibility determinations.

See

id. at 240.
The call for deference, however, does not apply to
questions of law.

See B.K. v. N.Y.C. Dep’t of Educ., 12 F.

Supp. 3d 343, 356 (E.D.N.Y. 2014) (the deferential standard “is
not implicated with respect to issues of law, such as the proper
interpretation of the federal statute and its requirements”).
Here, the primary question is whether the SRO and IHO correctly
concluded that the presumption of mailing applied.

This is a

question of New York state law — one that applies much more
broadly than just in the IDEA hearing context.

See, e.g., CIT

Bank N.A. v. Schiffman (“CIT Bank III”), 999 F.3d 113, 118 (2d
Cir. 2021) (foreclosure); N.Y. & Presbyterian Hosp. v. Allstate
Ins. Co., 814 N.Y.S.2d 687, 688 (App. Div. 2d Dept. 2006)
(insurance).

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IV. Discussion
Parents’ claims for retroactive tuition reimbursement
under the IDEA are assessed under the Burlington / Carter test.
See Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510
U.S. 7 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471
U.S. 359 (1985).

The test includes three substantive factors:

“(1) whether the school district’s proposed plan [the IEP] will
provide the child with a free appropriate public education; (2)
whether the parents’ private placement is appropriate to the
child’s needs; and (3) a consideration of the equities.”

C.F.

v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 73 (2d Cir. 2014).

The

burden of proof shifts in this analysis: the school district
“bears the initial burden of establishing the validity of its
plan”; if it fails to do so, the parents then “bear the burden
of establishing the appropriateness of their private placement
and that the equities favor them.”

R.E., 694 F.3d at 184–85.

Given the uncertainty surrounding the mailing of the
school location letter, the City failed (at the first step) to
demonstrate that its plan provided K.A.D. with a FAPE — at least
on a timely basis.

Simply put, a school district that fails to

tell a parent where it proposes to send her child to school
cannot carry its burden of demonstrating that it proposed a
valid plan for that student.

Remand is appropriate, however, on

the questions of whether the placement of K.A.D. at the Lowell

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School was appropriate to her needs, as discussed below, and
whether the equities favor relief.
A.

The City Did Not Offer a FAPE
Review of an SRO’s determination that a FAPE was

properly offered “should proceed on two levels.”
at 242.

M.H., 685 F.3d

“First, the district court should ask whether the State

has complied with the procedures set forth by the [A]ct.”

Id.

And “second, the court should decide whether the individualized
educational program developed through the Act’s procedures is
reasonably calculated to enable the child to receive educational
benefits.”

Id.

Given the State’s failure to establish when (or

even if) it mailed the school location letter, its case falters
at the first of these levels — the procedural level.

The IHO

and SRO erred in determining otherwise.
1.

School Placement and Procedural Violations
The IDEA requires that “[a]t the beginning of each

school year, each public agency must have in effect, for each
child with a disability within its jurisdiction, an IEP.”
C.F.R. § 300.323(a).

34

Failure to provide an adequate IEP amounts

to depriving the student of a FAPE.

See Doe v. E. Lyme Bd. of

Educ., 790 F.3d 440, 450 (2d Cir. 2015).
V.A. argues that the City did not meet this
requirement because it failed to notify her of the school where
K.A.D. would be placed for the 2018–19 school year.

14

Although

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V.A. does not precisely situate her argument within the IDEA’s
structure, her argument appears to be that the City violated the
requirement that the IEP include the “frequency, location, and
duration” of the “services” to be provided.

34 C.F.R.

§ 300.320(a)(7) (emphasis added); see Pl. Br. 13–14 (citing 34
C.F.R. § 300.323(a)).

The City responds that it did notify V.A.

of the school placement by mailing the school location letter in
July 2018.

City Br. 17.
Despite the reference to “location” in Section

300.320(a)(7), the Second Circuit has held that it is not a per
se procedural violation for the IEP to omit the name of the
specific school, with such information to follow.

T.Y. ex rel.

T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419–20 (2d Cir.
2009); see also C.F., 746 F.3d at 79.

Still, the school

designation cannot come so late that it impedes the parents’
ability to participate meaningfully in the school selection
process.

S.Y. v. N.Y.C. Dep’t of Educ., 210 F. Supp. 3d 556,

574–75 (S.D.N.Y. 2016).

For instance, a procedural violation

occurred where the equivalent of a school location letter was
sent “on June 15 for a school year beginning on July 6,” id. at
574 (citing FB v. N.Y.C. Dep’t of Educ., 132 F. Supp. 3d 522,
541–43 (S.D.N.Y. 2015)); “on June 18 for a school year beginning
on July 5,” id. (citing C.U. v. N.Y.C. Dep’t of Educ., 23 F.

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Supp. 3d 210, 227 (S.D.N.Y. 2014)); and on June 18 for a school
year beginning on July 2, id. at 574.
It obviously follows that a school district commits a
procedural violation when it fails to send a school location
letter at all.

C.U., 23 F. Supp. 3d at 228 (procedural

violation occurred where the school was identified to the
parents so late that they were unable to visit it).

As a

result, the key question in this case is whether the City
properly mailed the letter.

The SHO found that it did, but not

because of any evidence that V.A. had actually received the
letter.

Instead, the SRO invoked a “presumption” arising under

New York law to conclude that the mailing occurred.
Under New York law, the City may show proper mailing
of the school location letter in two ways: (1) “through evidence
of actual mailing (e.g., an affidavit of mailing or service)”;
or (2) “by proof of a sender’s routine business practice with
respect to the creation, addressing, and mailing of documents of
that nature.”

CIT Bank N.A. v. Schiffman (“CIT Bank II”), 168

N.E.3d 1138, 1142 (N.Y. 2021).

Like the IHO and SRO, the City

relies primarily, if not exclusively, on the second option here.
See City Br. 17–18; City Letter 2–3.
2.

The Presumption of Mailing: “Regular Office Procedure”
In New York, “a presumption of receipt arises

where . . . the record establishes office procedures, followed

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in the regular course of business, pursuant to which notices
have been addressed and mailed.”

Ma v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 597 F.3d 84, 92 (2d Cir. 2010) (citing
Nassau Ins. Co. v. Murray, 386 N.E.2d 1085, 1086 (N.Y. 1978)
(mem.)).

“[P]ersonal knowledge is required only to establish

regular office procedure, not the particular mailing.”

Meckel

v. Cont’l Res. Co., 758 F.2d 811, 817 (2d Cir. 1985).

But “[i]n

order for the presumption to arise, the office practice must be
geared so as to ensure the likelihood that the notice is always
properly addressed and mailed.”

CIT Bank II, 168 N.E.3d at 1142

(quoting Nassau, 386 N.E.2d at 1085). 6

This is key to invoking

the presumption: the proffered procedures must be effectively
“geared” to inspire confidence on the disputed aspect of the
mailing.

Here, the dispute surrounds when and whether the

letter was sent, and the City’s “procedures,” such as they were,
do not inspire sufficient confidence to warrant the
presumption’s application.

6 If a presumption is thus created, it may be rebutted by “proof of a
material deviation from an aspect of the office procedure that would call
into doubt whether the [document] was properly mailed.” CIT Bank II, 168
N.E.3d at 1143; see also Meckel, 758 F.2d at 817; Weiss v. Macy’s Retail
Holdings, Inc., 741 F. App’x 24, 28 (2d Cir. 2018) (citing cases). Given
that I conclude the presumption was not created here, I need not reach the
question whether it was rebutted.

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a.

Evidence of Mailing Offered by the City

As discussed, the parties do not dispute that the
letter showed September 9 in the date field, or that the
Collaborative Arts’ school year actually began on September 5.
See City Br. 17.

The City claims, rather, that the letter was

actually mailed in July.

City Br. 17–18.

The only evidence on this point is the testimony of
City employee Dinh Lu-Berio and the SESIS record on which she
relied.

See City Letter 2–3.

Lu-Berio testified that as the

placement officer for the City’s Committee on Special Education
3, she was responsible for mailing school location letters.
at 615:7–616:4.

R.

She testified that she sent “a lot of” school

location letters each year, though she could not quantify the
number.

R. at 641:22–642:10.
Lu-Berio did not testify to having an independent

recollection of mailing K.A.D.’s school location letter on a
particular date.
printout.

Rather, her testimony relied on the SESIS

See R. at 617:16-19 (offering no answer to the

question of “when was placement secured” for K.A.D.); R. at
618:5–7 (“Please, I would like to sign on into our database for
SESIS, so that I can give exact dates of when the letter was
mailed out.”); R. at 619:18–19 (hearing officer noting that LuBerio “ha[d] the documents now” before testimony continued); R.

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at 620:12–17 (Lu-Berio referring to the SESIS printout to
conclude that the letter was mailed on July 12, 2018).
Given that the CSE’s mailing procedures were at the
core of the dispute, it is striking that the City’s advocate
asked Lu-Berio no questions about those procedures during direct
testimony.

See R. at 615:4–620:8.

Indeed, the City’s

representative did not even pose a question that called clearly
for the date on which K.A.D.’s school location letter was
mailed.

Instead, once the SESIS record was in front of Lu-

Berio, the City’s representative simply asked her when K.A.D.’s
placement was “secured”:
MR. MONTANO: So my question to you, Ms. Lu-Berio, is
simply, the school location letter for [K.A.D.]
indicating placement at Collaborative Arts Middle
School, when was that placement actually secured?
MS. LU-BERIO: It was secured July 12, 2018.
MR. MONTANO: And how was that information, if at all,
communicated to the parent?
MS. LU-BERIO: So once placement is secured through
SESIS, I finalize the document and I mail it to the
parent.
MR. MONTANO: Okay.

Nothing further.

R. at 619:21–620:8.
To the extent Lu-Berio described her process at all,
she did so on cross-examination and upon questioning by the IHO.
When V.A.’s counsel asked, on cross, “how do you know” that the
location letter was transmitted on July 12, Lu-Berio responded:

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“Because I’m a very procedural person.

When I finalize an IEP —

I’m sorry, when I finalize a prior notice package, I print out
the school location letter and I personally fold the letter and
put it into an envelope and put it in the mail.”

R. at 642:11–

21.
The school location letter was introduced in evidence.
R. at 158:2–12, 783–84.

Lu-Berio could not clearly explain why

the letter was dated September 9.

On direct examination, she

implied that September 9 was the start of the school year for
the designated school.

R. at 617:10–14 (stating that “the date

populates as a September start date, because that’s when the
school location letter is [sic] for that school”).

She made

this same assertion more clearly on cross, testifying that “as I
stated earlier,” the letter would “automatically generate with
the September date, because the school location letter is
corresponding to the start date for that school year.”

R. at

636:3–9.
Later on cross, however, she attributed the date
discrepancy to a “SESIS programming issue” that she could not
explain.

R. at 643:23–644:11, 647:6–649:3.

And on further

questioning by the IHO, she acknowledged that September 9 was
not, in fact, the first day of the school year — Collaborative
Arts’ school year began on September 5 — and that she “d[id] not
know” why the September 9 date populated.

20

R. at 648:4–15.

Lu-

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Berio testified that she did not correct the erroneous date by
hand because to do so would have been, in her view,
“manipulating a legal document.”

R. at 649:4–12.

The SESIS log does not meaningfully fill the gaps in
Lu-Berio’s testimony about CSE procedures.

See City Letter 2.

The entry that the City points to, dated July 12, 2018, does not
refer to a school location letter by that name (or any specific
identifier).

It states: “Prior Notice Package for Placement

sent for [K.A.D.] // Letter sent today.”

R. at 799.

Lu-Berio

explained that the school location letter is a component of the
“prior notice package,” which may be sent in separate parts.

R.

at 621:18-22 (MS. LU-BERIO: “The school location letter is part
of the prior notice package.

So the . . . line that says prior

notice package for placement for [K.A.D.], letter sent today,
that was the school location letter.”); see also id. at 639:20–
640:17; City Letter 2 n.1.

The entry indicates the “User” as

“DLU,” a reference to Lu-Berio.

R. at 799.

Ultimately, Lu-Berio acknowledged that the SESIS log
does not expressly indicate what kind of letter was sent, even
though it would have been “appropriate” to do so:
MS. HARTLEY: So is there any indication anywhere,
based on what you did, that indicated that a school
location letter was sent?
MS. LU-BERIO:
no.

Not written in the [SESIS log] events,

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R. at 639:5–14; see also R. at 630:22–631:1.

Lu-Berio also

conceded that no other SESIS entry would have corresponded to
the school location letter.

R. at 632:2–6.

She explained,

however, that the letters she sends almost exclusively consist
of school location letters.

R. at 641:7–17 (asked by the IHO,

“is that the only kind of letter that you ever send out,” LuBerio responds “[f]or the most part, yes”).
b.

No Presumption of Mailing Has Been Established

The evidence proffered by the City is insufficient to
give rise to the presumption of mailing.

The presumption has

been successfully invoked, generally speaking, in cases
featuring much more detailed explanations of office mailing
procedures.

For example, the Second Circuit found that a bank

established the presumption where one of its managers testified
not only that the list of addresses was obtained “from a
computer registry,” but also about the “four methods” the bank
used to ensure “the number of labels, envelopes, stuffed
envelopes and stamped envelopes conformed to the count of
[addressees] as of the record date.”

Meckel, 758 F.2d at 814–

15, 817; cf. CIT Bank III, 999 F.3d at 118; CIT Bank N.A. v.
Schiffman (“CIT Bank I”), 948 F.3d 529, 533–34 (2d Cir. 2020)
(bank established the presumption by submitting an employee’s
sworn affidavit detailing the bank’s mailing procedures).

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Similarly, the Appellate Division found that an
insurance company could successfully invoke the presumption
where:
[T]he documentary evidence established that a notice
was generated for [the policyholder’s] policy during
the year in which the lead exclusion was added to the
policy. In addition, [the company] submitted evidence
that it placed the notices in envelopes with windows
so that the address on the notice was the one used for
mailing. The envelopes were then delivered to the
mail room, where they were sealed and the appropriate
postage was added. Thereafter, the mail was hand
delivered to the post office that was located adjacent
to [the company’s] parking lot.
Preferred Mut. Ins. Co. v. Donnelly, 974 N.Y.S.2d 682, 684 (App.
Div. 4th Dept. 2013).

Similar cases abound.

See, e.g., Badio

v. Liberty Mut. Fire Ins. Co., 785 N.Y.S.2d 52, 54 (App. Div.
1st Dept. 2004) (presumption of mailing was established where
the sender “present[ed] the testimony of an employee who
possessed personal knowledge of the office mailing practice,
including how the mail was picked up and counted, and how the
names and addresses on each item were confirmed,” in addition to
“the signed and stamped certificate of mailing”); cf. Leon v.
Murphy, 988 F.2d 303, 309 (2d Cir. 1993) (presumption of mailing
was established where the sender produced both “file copies of
[the] documents” and “affidavits as to the regular office
mailing procedures followed with respect to their mailing”).
Indeed, in T.C. v. New York City Department of Education, the
district court found that the City had established a presumption

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that it had mailed the IEP and a school placement notification
where witnesses “described the routine DOE practice for mailing
IEPs, including the computer system used by CSE staff and the
mail clerk's process for mailing,” and offered “further detail
as to the data and record keeping programs used and the step-bystep process from the generation of the [letter] to the mailroom
to the mailbox.”

No. 15-CV-3477, 2016 WL 1261137, at *10

(S.D.N.Y. Mar. 30, 2016).
In contrast, New York courts refuse to accord a
presumption where the sender provided insufficiently detailed
information.

For instance, in Progressive Casualty Insurance

Co. v. Infinite Ortho Products, Inc., the Second Department held
that the presumption did not apply where the sender failed to
“state, in his affidavit,” (1) “how the envelopes were addressed
so as to ensure that the address was correct or whether the
envelope was addressed by the automated system or by an
employee,” and (2) “how and when the envelopes, once sealed,
weighed, and affixed with postage using the automated system,
were transferred to the care and custody of the United States
Postal Service or some other carrier or messenger service to be
delivered.”

7 N.Y.S.3d 429, 431–32 (App. Div. 2d Dept. 2015).

Other cases are similar.

See, e.g., Progressive Cas. Ins. Co.

v. Metro Psychological Servs., P.C., 32 N.Y.S.3d 182, 184 (App.
Div. 2d Dept. 2016) (no presumption established where the

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evidence consisted of only “conclusory allegations regarding [a
sender’s] office practice and procedure, and failed to establish
that the practice and procedure was designed to ensure that
the . . . letters were addressed to the proper party and
properly mailed”).
In light of these authorities, Lu-Berio’s testimony
falls short of establishing an “office practice . . . geared so
as to ensure the likelihood that [school location letters] [are]
always properly addressed and mailed.”
at 1142.

CIT Bank II, 168 N.E.3d

In this case, given the IDEA’s requirements, “properly

addressed and mailed” requires two showings: (1) that the
mailing was correctly addressed to V.A., and (2) that it was
timely mailed.

But there is insufficient evidence here of

regular practice relating to either.

Lu-Berio testified only

that she printed and folded the letter, put it in an envelope,
and “put it in the mail.”

R. at 642:18–21. 7

As in Infinite

Ortho, there is no evidence about whether the address was
verified, whether adequate postage was applied, or —

At oral argument, when asked to identify the “processes” that DOE uses
for such mailings, counsel for the City added only that “the DOE mails the
school placement letter, essentially informing the parent what school the DOE
recommends for the student’s placement,” “prior to the start of the school
year.” Tr. of Oral Arg. 24:23–25:15, ECF No. 46.
7

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critically — where, when, or by whom the letter was tendered to
the Postal Service.

See 7 N.Y.S.3d at 431–32. 8

On this last question, it is unclear what Lu-Berio
meant by “put[ting] [the letter] in the mail.”

R. at 642:20–21.

That statement could mean any one of several things: (1) that
she placed the sealed envelope in some sort of internal outbox
for another person to stamp and deliver to the custody of the
Postal Service; (2) that she affixed postage but had another
person deliver the stamped letter to the Postal Service; (3)
that she affixed postage and delivered the letter to a post
office or USPS collection box herself; or (4) something in
between.
fail.

Without this clarification, the City’s contention must

Cf. J.T.M. Grp., Inc. v. Fleischman, No. 2000-1797SC,

2001 WL 1665333, at *1 (N.Y. App. Term 2d Dept. Oct. 24, 2001)
(“mere belief” that an unidentified employee took document from
an attorney’s mailbox and completed all the steps in the mailing
process was insufficient to establish the presumption).
The City thus has not shown that it is entitled to a
presumption of mailing.

Although the school location letter itself bears an address
purportedly corresponding to V.A., R. at 784, the envelope is not in the
record, so it cannot be ascertained whether the same name and address were
shown on the envelope.
8

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3.

Proof of Actual Mailing
As mentioned above, a litigant may also show that a

document was mailed by showing proof of actual mailing.
Bank II, 168 N.E.3d at 1142.

CIT

But to the extent the City

contends that it has proffered such proof, see City Letter 2, it
is incorrect.

As discussed, the City has proffered only three

pieces of evidence in support of its position that it timely
mailed the letter: (1) Lu-Berio’s testimony; (2) the SESIS
printout Lu-Berio relied upon; and (3) the purportedly misdated
letter itself.

See City Br. 17–18; City Letter 2.

However,

none of this evidence suffices as proof of actual mailing under
New York law.
A litigant may establish “proof of mailing” “by
certificate or by affidavit of one with personal knowledge.”
Tracy v. William Penn Life Ins. Co. of N.Y., 650 N.Y.S.2d 907,
909–10 (App. Div. 3d Dept. 1996).

However, where a sender

asserts that his office mailed a letter on a certain date, but
“d[id] not state that he had personal knowledge of the mailing,”
no proof of actual mailing is established.

Bank of Am. v.

Guillaume, 94 N.Y.S.3d 114, 115 (App. Div. 2d Dept. 2019).

As

discussed, it is evident that at the time of her testimony, LuBerio lacked personal knowledge of the mailing, given that she
requested to look at, then explicitly relied on, the SESIS log.
See R. at 618:5–7, 619:18–19, 620:12–17.

27

Indeed, after the

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first time Lu-Berio is asked about the date she purportedly
mailed the letter, and before she answered, the parties and
hearing officer spend the next two pages of the hearing
transcript getting the exhibit containing the SESIS log into LuBerio’s hands.

R. at 617:16–619:25.

Alternatively, proof of mailing may be established by
“certificate.”

Tracy, 650 N.Y.S.2d at 909.

short of meeting this requirement here.

But the City falls

“An addressee’s

signature on a certified mail return receipt supports a finding
that the addressee received the notice.”

State Farm Mut. Auto.

Ins. Co. v. Kankam, 770 N.Y.S.2d 714, 716 (App. Div. 1st Dept.
2004).

But even a “certified mail receipt bear[ing] a postmark

date” is insufficient where “there was no evidence that the
[document] was mailed under that certified mail receipt number.”
Guillaume, 94 N.Y.S.3d at 115–16.

Here, all the City has

produced is the letter itself, without any indicia of when, or
where, or to whom — or even if — it was actually mailed.

Thus,

the City has not shown evidence of actual mailing.
4.

The Procedural Error Warrants Relief
To succeed on her claim that a procedural violation

occurred, V.A. must demonstrate not only that the City failed to
provide timely notice of the school placement, but also that the
failure was sufficiently grave to warrant relief.

“Procedural

violations only entitle parents to reimbursement if they

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‘impeded the child’s right to a free appropriate public
education,’ ‘significantly impeded the parents’ opportunity to
participate in the decisionmaking process,’ or ‘caused a
deprivation of educational benefits.’”
(quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).

C.F., 746 F.3d at 78–79
In contrast,

“[s]ubstantive inadequacy automatically entitles the parents to
reimbursement.”

R.E., 694 F.3d at 190.

As discussed above, the failure to identify any school
at which the IEP services would be provided constituted a
serious procedural error.

Moreover, the failure to identify a

school meant that V.A. was “unable to arrange a visit to [the
school] or to inquire about its facilities or programs,” C.U.,
23 F. Supp. 3d at 228, or otherwise “meaningfully participate in
the school selection process.”

FB, 132 F. Supp. 3d at 542.

Thus, “[b]ecause this violation significantly impeded [V.A.’s]
opportunity to participate in the decision making process
concerning the provision of the FAPE, this procedural violation
constitutes a denial of a FAPE and satisfies the first element
of the Burlington–Carter test.”

C.U., 23 F. Supp. 3d at 228.

Thus, the City’s procedural error here warrants
relief.
5.

Deference to the SRO Decision Is Not Warranted
Finally, I address the City’s argument that this Court

should defer to the SRO’s decision under the heightened

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deference standards typically applicable in IDEA cases.
Br. 14–15.

City

This contention fails for reasons alluded to above —

namely, it does not implicate the educational expertise of SROs
and IHOs.
Deference to an SRO’s decision is generally
appropriate because “the judiciary generally lacks the
specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy.”
R.E., 694 F.3d at 184.

Accordingly, “[r]eview of the

administrative decision is by no means an invitation to the
courts to substitute their own notions of sound educational
policy for those of the school authorities which they review.”
Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 748 (2d Cir.
2018).
But no such policy or expertise concerns are present
here, where the issue is purely one of general New York law.
There is no reason to think that state educational authorities
are better-equipped than courts to resolve a matter of New York
civil procedure, and the City cites no authority suggesting
otherwise.

See generally M.H., 685 F.3d at 244 (the decision

whether to defer “must . . . be colored by an acute awareness of
institutional competence and role”).
Nor was the SRO’s decision “based on substantially
greater familiarity with the evidence and the witnesses than the

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reviewing court.”

Id.

The relevant evidence is quite cabined,

easily identified by the parties and this Court, and of the type
federal courts are frequently called upon to evaluate.

See,

e.g., CIT Bank II, 168 N.E.3d at 1143–44 (New York Court of
Appeals leaving the application of the presumption rules to the
Second Circuit); CIT Bank III, 999 F.3d at 118 (Second Circuit
resolving the issue whether the presumption of mailing was
established).

And in particular, Lu-Berio’s credibility is not

at issue here: even if her testimony were assumed to be
completely true, the City still could not show — given the
analysis above — that it timely mailed the school location
letter. 9
Thus, deference to the SRO’s decision is not
appropriate on the mailing issue.
B.

Remand Is Appropriate to Determine Whether the Lowell
School Was An “Appropriate” Placement
Even if the City failed properly to offer a valid plan

for K.A.D. to receive a FAPE, V.A. must still “establish[] the
appropriateness of their private placement and that the equities
favor [her].”

R.E., 694 F.3d at 184–85.

Notably, the City has

presented no argument responding to V.A.’s contentions that both

The court in T.C. found “the SRO’s conclusion [about a presumption of
mailing applying] is entitled to deference” because it was “well-reasoned and
supported by the record.” 2016 WL 1261137, at *7. For the reasons
discussed, I decline to defer to the administrative hearing officers on this
issue.
9

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these requirements are satisfied. See City Br. 18 (stating, with
no further argument, that “since DOE offered the student a FAPE,
consideration of Prongs II and III of the Burlington / Carter
test is not necessary”); Tr. of Oral Arg. 34:2–7, ECF No. 46.
For a placement to be “appropriate” under the second
prong of the Burlington / Carter test, it must be “reasonably
calculated to enable the child to receive educational benefits.”
Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006).
This inquiry is less exacting than the inquiry that would apply
to determine the appropriateness of an IEP.

See id. at 364.

The parent “need only demonstrate that the placement provides
educational instruction specially designed to meet the unique
needs of a handicapped child, supported by such services as are
necessary to permit the child to benefit from instruction.”
at 365.

Id.

“Grades, test scores, and regular advancement may

constitute evidence that a child is receiving educational
benefit, but courts assessing the propriety of a unilateral
placement consider the totality of the circumstances in
determining whether that placement reasonably serves a child’s
individual needs.”

Id. at 364.

Because the SRO did not reach the issue of whether the
Lowell placement was appropriate, see City 56.1 ¶ 23, I must
“look to the opinion of the IHO,” who did address the issue.
C.F., 746 F.3d at 82.

The IHO found that Lowell was not

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appropriate because it “provides too little remediation” and did
not “provide [K.A.D.] with a class which is slowly paced enough
to make her feel capable of doing what is expected.”

R. at 44.

Importantly, unlike with the mailing issue, the usual
deferential standard does apply here.

See C.F., 746 F.3d at 82.

However, notwithstanding that standard, I find the
IHO’s decision to be inadequate on this issue.

In particular,

several conclusions of the IHO do not appear to be sufficiently
supported by evidence.

For instance, the IHO found that the

testimony by Lowell School educators showing that K.A.D. had
made academic progress “ignores or contradicts the fact that
[K.A.D.] is still struggling with reading: her reading fluency
was at a grade 4.1 and her reading comprehension was at a grade
3.9.”

R. at 43.

But despite the reference to K.A.D. “still

struggling,” these figures appear to come from a 2017
neuropsychological evaluation, R. at 714, and thus could not
measure her comprehension or progress during the 2018–19 school
year.

In contrast, a standardized test that was actually

administered to K.A.D. in December 2018 indicated that K.A.D.’s
“basic reading skills are above grade level (9th Grade).”

R. at

67.
Moreover, other evidence not considered by the IHO
appears to suggest that the Lowell School was an appropriate
placement for K.A.D.

First, K.A.D. attended Lowell not only for

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seventh grade (the year prior to the year at issue), but also
for at least one subsequent year.

Specifically, at oral

argument in December 2021, V.A.’s counsel indicated that K.A.D.
was then attending the Lowell School as a “funded student,” with
the funding provided by DOE.

Tr. of Oral Arg. 16:24–17:18.

Counsel for the City did not contradict this representation.
This subsequent development is relevant because although “the
IEP must be evaluated prospectively as of the time of its
drafting,” the Second Circuit also has “reject[ed] . . . a rigid
‘four corners’ rule prohibiting testimony that goes beyond the
face of the IEP.”

R.E., 694 F.3d at 186; see also D.S. v.

Bayonne Bd. of Educ., 602 F.3d 553, 564–65 (3d Cir. 2010) (“[A]
court should determine the appropriateness of an IEP as of the
time it was made, and should use evidence acquired subsequently
to the creation of an IEP only to evaluate the reasonableness of
the school district’s decisions at the time they were made.”),
quoted by R.E., 694 F.3d at 186.

It is thus difficult to see

how a placement that was seen as appropriate — and that was paid
for — by the City for K.A.D.’s seventh and (presumably) tenth
grades would be inappropriate for her eighth grade, especially
under the lower standards applicable to a unilateral placement.
Additionally, Lowell appears to have provided all, or
at least certainly the great majority, of the services
recommended by the IEP.

At Lowell, K.A.D. received individual

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and group occupational therapy, individual physical therapy, and
group speech-language therapy.
recommending these services).

R. at 689; cf. R. at 735–36 (IEP
Moreover, K.A.D. was provided

with a licensed school psychologist as her counselor, who was
“available to her as needed,” to support her social and
emotional functioning needs.

R. at 409:8–13.

And to address

K.A.D.’s anxiety, the school would “group[] [her] with students
who are going to be supportive to her,” as well as provide
additional supports as necessary, such as warning K.A.D. of any
changes to her routine.

R. at 409:14–22.

But even given the shortcomings of the IHO’s decision,
the question whether the Lowell placement was appropriate is one
that requires educational expertise, and thus remand is
appropriate.

See D.N. v. N.Y.C. Dep’t of Educ., 905 F. Supp. 2d

582, 589 (S.D.N.Y. 2012); see also N.Y.C. Dep’t of Educ. v.
V.S., No. 10-CV-5120, 2011 WL 3273922, at *11 (E.D.N.Y. July 29,
2011) (case law suggests that “remand is appropriate where the
district court has received insufficient guidance from state
administrative agencies as to the merits of a case”); cf. id.
(while a district court “may remand for clarification or
correction of an incorrect or unhelpful SRO decision,” the court
“need not do so when the IHO’s determination offers wellreasoned and persuasive guidance”).

The Court passes no

judgment on whether V.A.’s unilateral placement of K.A.D. at the

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Lowell School was appropriate, and on remand, the SRO should
make a determination on this issue in the first instance.
C.

Remand Is Appropriate to Determine Whether the Equities
Favor Relief
Finally, V.A. must show that the equities favor

reimbursement.

See Frank G., 459 F.3d at 363–64 (“[B]ecause the

authority to grant reimbursement is discretionary, equitable
considerations relating to the reasonableness of the action
taken by the parents are relevant in fashioning relief.”).

The

SRO and IHO did not assess the balance of the equities
comprehensively.

See City 56.1 ¶ 23; SRO Decision 25; R. at 44.

Moreover, certain considerations relevant to the equitable
determination may implicate issues of educational policy, such
as whether V.A. gave the City “adequate notice of the
withdrawal” and “whether the amount of private-school tuition
was reasonable.”

E.M. ex rel. N.M. v. N.Y.C. Dep’t of Educ.,

758 F.3d 442, 461 (2d Cir. 2014).
on this issue.

Remand is therefore necessary

See M.H., 685 F.3d at 254 (“[B]oth

administrative review officers and courts are required to
evaluate the equities in considering a tuition reimbursement
claim.”).
V.

Conclusion

For these reasons, the SRO’s decision dismissing the
appeal is vacated.

V.A.’s motion for summary judgment is

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Case 1:20-cv-00989-EK-RML Document 48 Filed 05/10/22 Page 37 of 37 PageID #: 2980

granted, and the City’s cross-motion is denied, on all issues
herein discussed except for the appropriateness of K.A.D.’s
unilateral placement at the Lowell School and the balance of
equities.

The IHO’s conclusions regarding the appropriateness

of K.A.D.’s placement are remanded to the SRO to review in the
first instance.

On remand, the SRO should also determine

whether V.A. has met her burden on the balance of the equities.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated:

May 10, 2022
Brooklyn, New York

37