Zimmerman et al v. Banks et al

Filing 33

MEMORANDUM OPINION AND ORDER re: 16 MOTION for Summary Judgment . filed by Rachel Zimmerman, 23 CROSS MOTION for Summary Judgment and Opposition to ECF No. 16. filed by David C. Banks, New York City Department of Educati on. The Court has considered all of the parties' arguments. To the extent not specifically addressed above, those arguments are either moot or without merit. For the reasons explained above, the parties' cross-motions for summary judgmen t on the transportation issue are denied without prejudice and remanded to the IHO. The plaintiff's motion for summary judgment on the related services issue is denied without prejudice and the defendants motion for summary judgment on that issu e is granted to the extent that the plaintiff's requested relief is denied without prejudice. The Clerk is directed to enter Judgment remanding this case to the IHO. The Clerk is also directed to close this case and to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 11/25/2024) (ks) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
????????????????????????????????????
RACHEL ZIMMERMAN, ET AL.,
Plaintiffs,

23-cv-9003 (JGK)

- against -

MEMORANDUM OPINION
AND ORDER

DAVID C. BANKS, ET AL.,
Defendants.
????????????????????????????????????
JOHN G. KOELTL, District Judge:

The plaintiff, Rachel Zimmerman (“Zimmerman”), brought this
action individually and on behalf of her grandchild, H.W.,
against David C. Banks and the New York City Department of
Education (collectively, the “DOE”), seeking to compel the DOE
to comply with the Findings of Fact and Decision (“FOFD”) issued
by an Impartial Hearing Officer (“IHO”) pursuant to the
Individuals with Disabilities in Education Act (“IDEA”), 20
U.S.C. § 1400 et seq.
The plaintiff now moves for summary judgment, contending
that she has fully complied with all the conditions in the FOFD,
and that the DOE has wrongly withheld payment for H.W.’s
transportation and related services expenses. The DOE opposes
the plaintiff’s motion and has filed a cross-motion for summary
judgment. The DOE agrees that it is responsible for funding
H.W.’s 2021–2022 and 2022–2023 tuition and related services.
However, two disputes remain: (1) whether the DOE is responsible
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for funding H.W.’s transportation costs for the entire school
year or only for the days H.W. attended school in person and
actually used the transportation services; and (2) whether the
plaintiff has supplied the documentation required by the FOFD as
a prerequisite to reimbursement for related services.
For the following reasons, the plaintiff’s motion for
summary judgment is denied, the defendants’ motion for summary
judgment is granted in part, and the case is remanded for
further proceedings.
I.
A.
“Congress enacted the IDEA to promote the education of
students with disabilities.” A.M. ex rel. Y.N. v. N.Y.C. Dep’t
of Educ., 964 F. Supp. 2d 270, 274 (S.D.N.Y. 2013). 1 “Under the
IDEA, states receiving federal funds are required to provide
‘all children with disabilities’ a ‘free appropriate public
education.’” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); see
also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122
(2d Cir. 1998). A free appropriate public education (“FAPE”)
must provide “special education and related services tailored to

Unless otherwise noted, this Memorandum Opinion and Order omits
all alterations, omissions, emphasis, quotation marks, and
citations in quoted text.
1

2

meet the unique needs of a particular child, and be reasonably
calculated to enable the child to receive educational benefits.”
Gagliardo, 489 F.3d at 107.
To achieve this end, the IDEA requires state or local
education agencies to provide each disabled student with an
individualized education program (“IEP”) specifying the
student's educational needs and “the specially designed
instruction and related services to be employed to meet those
needs.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 448 (2d Cir.
2015). Parents may challenge their child’s IEP as inadequate by
filing a Due Process Complaint (“DPC”), which triggers an
administrative-review process by an IHO. See M.W. ex rel. S.W.
v. N.Y.C. Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013)
(citing 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)).
A party may appeal the decision of the IHO to a DOE State Review
Officer (“SRO”), and the SRO’s decision may be challenged in
state or federal court. Id. at 135–36.
Moreover, if a school district fails to provide a FAPE to a
child with disabilities, the child’s parents may, at their own
financial risk, refuse the improper placement, enroll the child
in an appropriate private school, and retroactively seek
reimbursement from the state for the cost of the private school
by bringing a DPC. See Sch. Comm. of Burlington, Mass. v. Dep’t
of Educ. of Mass., 471 U.S. 359, 370 (1985).
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B.
The following facts are drawn from the materials submitted
by the parties in connection with this motion, as well as from
the FOFD submitted as an exhibit to the Complaint, and are
undisputed unless otherwise noted.
H.W. is a six-year-old child with a traumatic brain injury.
who has been diagnosed with encephalitis and spastic
quadriplegic cerebral palsy. Compl., Ex. 1 (“FOFD”) at 6, ECF
No. 1. H.W. is non-verbal and non-ambulatory and receives
nutrition through a G-tube. Id. H.W. has been classified as a
child “with a disability” pursuant to the IDEA. Pl.’s Local Rule
56.1 Statement ¶ 2, ECF No. 19.
Plaintiff Rachel Zimmerman, the grandparent and guardian of
H.W., determined that public school could not meet H.W.’s needs
and placed H.W. in the International Institute for the Brain
(“iBrain”), a private school, for the 2021–2022 and 2022–2023
school years. FOFD at 7. The plaintiff also entered into a
contract with Sisters Travel and Transportation Services, LLC
(“Transportation Company”) to provide H.W. with transportation
to school. Id.
Subsequently, in October 2022, the plaintiff filed a DPC
alleging that the DOE failed to provide H.W. with a FAPE,
pursuant to the IDEA, for the 2021–2022 and 2022–2023 school
years. Kapoor Decl. ¶ 6, ECF No. 25.
4

On June 2, 2023, after holding a hearing and reviewing
materials submitted in connection with the DPC, the IHO issued
an FOFD concluding that the DOE failed to provide H.W. with a
FAPE during both school years. Id. ¶ 7; FOFD at 9–10. The IHO
concluded that iBrain was an appropriate unilateral placement
and that equitable considerations favored an award of full
tuition reimbursement and direct funding for the 2021–2022 and
2022–2023 school years. See FOFD at 14. As relevant here, the
IHO ordered the DOE to:
directly pay [iBrain] for all costs and fees
for the student’s related services at [iBrain]
for the 2021–2022 school year in amount not to
exceed $65,041.60, within 25 calendar days of
the submission of copies of invoices for such
services.
. . .; directly pay [iBrain] for all costs and
fees for the student’s related services at
[iBrain] for the 2022–2023 school year in
amount not to exceed $108,158.40, within 25
calendar days of the submission of copies of
invoices for such services.
. . .; directly pay Transportation Company for
all
costs
and
fees
for
the
student’s
transportation to and from school, at a rate
not to exceed $345 per trip, for the 2022–2023
school year, within 25 calendar days of the
submission of copies of invoices for such
services.
. . .; directly pay Transportation Company for
all
costs
and
fees
for
the
student’s
transportation to and from school, at a rate
not to exceed $320 per trip, for the 2021–2022
school year, within 25 calendar days of the
submission of copies of invoices for such
services.
5

FOFD at 15–16. 2
Zimmerman now moves for summary judgment, contending that
she has submitted all documentation required by the FOFD and
that the DOE has wrongly withheld payment for H.W.’s
transportation to and from school and for related services.
Pl.’s Mem. of L. at 5–7, ECF No. 20. The DOE opposes the
plaintiff’s motion and has filed a cross-motion for summary
judgment, arguing that this Court should order the plaintiff to
produce certain documents that they contend the FOFD requires as
a prerequisite to payment, or alternatively, should remand the
matter to the IHO for further clarification of the scope of the
FOFD. Defs.’ Mem. of L. at 6–7, ECF No. 24.
II.
The standard for granting summary judgment is well
established. 3 “The court shall grant summary judgment if the
The DOE complied with orders to pay for tuition and nursing
services. Pl.’s Reply Mem. at 5 n.1, ECF No. 27. Those orders
are not at issue in this case.
2

Generally, in IDEA cases, courts apply a different summary
judgment standard. See, e.g., T.P. ex rel. S.P. v. Mamaroneck
Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per
curiam); Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of
Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005). “[S]ummary judgment
in IDEA cases is in substance an appeal from an administrative
determination, not a summary judgment.” Donohue v. Banks, No.
22-cv-8998, 2023 WL 6386014, at *7 (S.D.N.Y. Sept. 30, 2023).
This case is somewhat atypical because the FOFD was favorable to
the plaintiff and the plaintiff brought this action in federal
court to enforce the FOFD, not to appeal the FOFD. Pursuant to
3

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movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322—23 (1986); Gallo v. Prudential Residential Servs.
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial court’s
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them. Its
duty, in short, is confined at this point to issue-finding; it
does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.
However, “disputed legal questions present nothing for trial and
are appropriately resolved on a motion for summary judgment.”
Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y.
1990).
The moving party bears the initial burden of “informing the
district court of the basis for its motion” and identifying the
20 U.S.C. § 1415(i)(2)(A), “[o]nly a party aggrieved by the
findings and decision of an SRO may bring a federal or state
court action.” Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of
Educ., 769 F. Supp. 2d 403, 415 n.11 (S.D.N.Y. 2011). A party
may not bring a claim in federal court to enforce a favorable
FOFD. However, “[t]his does not . . . divest the Court of
subject matter jurisdiction. [The] [p]laintiffs may seek to
enforce their IDEA claim under § 1983, under which this Court
has subject matter jurisdiction to enforce favorable
administrative decisions rendered under the provisions of the
IDEA.” Rutherford v. Fla. Union Free Sch. Dist., No. 16-cv-9778,
2019 WL 1437823, at *24 (S.D.N.Y. Mar. 29, 2019). In this case
the plaintiff asserts a § 1983 claim and this Court therefore
has jurisdiction over the case.
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materials in the record that “it believes demonstrate the
absence of a genuine issue of material fact.” Celotex, 477 U.S.
at 323. If the movant meets that burden, “the nonmoving party
must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted). At the
summary judgment stage, the court must resolve all ambiguities
and draw all reasonable inferences against the moving party. See
id. The substantive law governing the case will identify those
facts that are material and, “[o]nly dispute[] over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When both
parties move for summary judgment, the Court must apply the
standards governing summary judgment to each party.
III.
At this stage in the litigation, only two disputes remain:
(1) whether the DOE is responsible for funding H.W.’s
transportation costs for every school-day or only for days H.W.
attended school in person and actually used the transportation
services; and (2) whether the plaintiff has supplied the
necessary documentation of payment for related services as a
prerequisite to reimbursement for those services.

8

The IDEA itself provides no guidance as to the DOE’s
obligation to pay for transportation and related services under
these circumstances, and, accordingly, “the sole source of the
DOE’s reimbursement obligations . . . is the applicable
administrative order.” Davis v. Banks, No. 22-cv-8184, 2023 WL
5917659, at *4 (S.D.N.Y. Sept. 11, 2023); see also Mendez v.
Banks, 65 F.4th 56, 61 (2d Cir. 2023) (determining the DOE’s
obligations based on the underlying pendency order). In
considering the scope of administrative orders, courts apply
principles of contract interpretation. Abrams v. N.Y.C. Dep’t of
Educ., No. 20-cv-5085, 2022 WL 523455, at *2 n.3, *3 (S.D.N.Y.
Feb. 22, 2022). Under New York law, a “contract is unambiguous
if the language it uses has a definite and precise meaning
unattended by danger of misconception in the purport of the
agreement itself, and concerning which there is no reasonable
basis for a difference of opinion.” Greenfield v. Philles
Records, Inc., 780 N.E. 2d 166, 170–71 (N.Y. 2002). 4
Accordingly, the Court addresses the language of each
relevant section of the FOFD order in turn.

The plaintiff claims that New York law applies to questions of
contract interpretation in this case. Pl.’s Mem. of Law at 22.
There appears to be no dispute that New York law applies.
4

9

A.
The extent of the DOE’s transportation reimbursement
obligation hinges on the language of the underlying
administrative order. The parties dispute whether the plain
language of the FOFD requires the DOE to fund transportation for
all the contracted for days in the school year or only for days
when H.W. used the transportation services. If the FOFD only
obligates the DOE to reimburse transportation services actually
used by H.W., then the plaintiff must submit attendance records
that differentiate between in-person and remote attendance. The
plaintiff has not done so.
Other courts have addressed the question of whether schools
must supply in-person attendance records as a prerequisite to
DOE reimbursement. In Donohue v. Banks, No. 22-cv-8998, 2023 WL
6386014, at *9–12 (S.D.N.Y. Sept. 30, 2023), a court in this
District evaluated the transportation reimbursement language
found in various FOFDs and divided the FOFDs into three
categories: (1) those with orders requiring reimbursement
pursuant to the transportation contract or reimbursement of any
transportation costs; (2) those with language requiring
transportation reimbursement only for school days attended or
services “actually provided”; and (3) those with language
unclear as to the scope of the DOE’s reimbursement obligation
for transportation services.
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With regard to the first category of FOFDs, the court
concluded that where the FOFD order required that the DOE fund
transportation “in accordance with the contract” or where the
order contained broad language requiring the DOE to fund “any
transportation costs,” the DOE was obligated to reimburse the
plaintiffs for transportation regardless of the child’s inperson attendance at school. Id. at *9–10; see also Abrams, 2022
WL 523455, at *4 (noting that “the only restriction in the . . .
Orders that the Court can ascertain relate[s] to the length of
travel time for the services” and concluding that the DOE was
obligated to reimburse the plaintiff for the full transportation
contract amount).
With regard to the second category of FOFDs, the court
concluded that where the FOFD order required the DOE to pay for
transportation services “actually provided” or for the child’s
“dates of attendance,” the DOE was obligated only to reimburse
the plaintiffs for transportation on days the child attended
school in person. Id. at *10–11. Other courts have reached
similar conclusions with respect to the “actually provided”
language. See Davis, 2023 WL 5917659, at *4 (finding that where
the FOFD used the “actually provided” language the plaintiffs
were “entitled to reimbursement only for days that their
children actually used transportation services and that the DOE
is obligated to pay only if [the plaintiffs] provide adequate
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documentation”); Araujo v. N.Y.C. Dep’t of Educ., No. 20-cv7032, 2023 WL 5097982, at *4–5 (S.D.N.Y. Aug. 9, 2023). 5
Finally, the court evaluated FOFDs where the transportation
cost language did not contain any clear statement of scope. For
those FOFDs, the court concluded that the language was ambiguous
and “remand[ed] for further clarification.” Donohue, 2023 WL
6386014 at *12; see also Davis, 2023 WL 5917659, at * 5
(concluding that orders providing for transportation services
“to and from iBRAIN” are “complicated” and that “both sides
proffer plausible interpretations of the relevant language”).
The plaintiff relies on Abrams, to argue that the FOFD
language compels the DOE to pay for transportation services,
regardless of whether those services were used. Abrams, 2022 WL
523455, at *4. However, other courts have distinguished Abrams
on the ground that, in that case, the IHO ordered the defendant
to pay for all the transportation expenses. Araujo, 2023 WL
5097982, at *4–5; Davis, 2023 WL 5917659, at *4. This FOFD
contained no such language.

Courts in this District have observed that plaintiffs need not
provide “formal attendance records, if neither iBrain nor [the
Transportation Company] indeed keeps such records.” Araujo, 2023
WL 5097982, at *5; Davis, 2023 WL 5917659, at *4 n.5.
“Affidavits from individuals who interacted with [the student]
may suffice” to establish days on which the student attended
school in person and actually used transportation services.
Araujo, 2023 WL 5097982, at *5.
5

12

In this case, the language of the FOFD neither allows for a
broad reading that would require the DOE to pay for “any
transportation costs” or “in accordance with the contract”, nor
a narrow reading that requires reimbursement only for services
“actually provided.” The DOE claims that the FOFD requires proof
of services “actually provided” (or “actually rendered” or
“actually used”), see Defs.’ Mem. of Law at 2, 6, 10–12, 14, 15;
Defs.’ Reply Mem. of Law at 1, 3–6, ECF No. 31, but the IHO
never used those specific words. Instead, the FOFD contains
language providing that the DOE reimburse the plaintiff “at a
rate not to exceed $320 per trip” for the 2021–2022 school year
or “$345 per trip” for the 2022–2023 school year. FOFD at 14–15
(emphasis added). The DOE argues plausibly that the “per trip”
language indicates that the DOE only need reimburse the
plaintiff for trips actually taken. However, as the plaintiff
counters, “[t]ransportation is a yearly cost, not a per diem
service.” Pl.’s Reply Mem. of L. at 9. Therefore, the language
could be read to require payment for the contractually agreed
upon terms of the transportation contract which in turn is
calculated based on a rate of $320 or $345 per trip.
Without the “actually provided” language, or broad language
requiring reimbursement of “any transportation costs,” “both
sides proffer plausible interpretations of the relevant
language.” Davis, 2023 WL 5917659 at *5 (concluding that there
13

were two plausible interpretations of language requiring
transportation “to and from” school). Accordingly, the FOFD at
issue in this case falls into the third category identified by
the court in Donohue, consisting of “students with [o]rders
[u]nclear as to the [s]cope of the DOE’s [r]eimbursement
[o]bligation for [t]ransportation [s]ervices.” Donohue, 2023 WL
6386014, at *11.
Because the FOFD’s language is ambiguous and requires
further clarification, this case should be remanded to the IHO
for further clarification. Id. at *12; see also Hidalgo v.
N.Y.C. Dep’t of Educ., No. 20-cv-98, 2021 WL 2827037, at *5
(S.D.N.Y. July 7, 2021) (“Remand is appropriate to obtain the
necessary educational expertise of the IHO and the SRO”).
Accordingly, the Court denies without prejudice both parties’
motions for summary judgment as they pertain to reimbursement
for transportation costs and remands to the IHO for
clarification of the scope of the FOFD as it pertains to
transportation.
B.
Zimmerman also contends that she submitted all the required
documentation for related services pursuant to the FOFD.
However, she failed to attach or cite to any admissible evidence
in connection with her motion for summary judgment. The
plaintiff’s Local Civil Rule 56.1 Statement and Memorandum of
14

Law cite only to the Complaint and the FOFD. Neither of these
documents support the plaintiff’s allegation that she fully
satisfied the FOFD’s requirement that she submit invoices for
related services. Although the plaintiff belatedly submitted
supporting documentation in connection with the Reply
Memorandum, see Bellantoni Decl., this does not satisfy the
plaintiff’s burden on a motion for summary judgment. This
deficiency in the plaintiff’s papers alone justifies denying the
plaintiff’s motion for summary judgment for payment of the
related services.
Moreover, the FOFD’s language regarding the scope of the
DOE’s obligation to pay for related services is unambiguous. The
FOFD states that the DOE is required to pay iBrain “all costs
and fees for [H.W.’s] related services at [iBrain] for the 2021–
2022 school year in amount not to exceed $65,041.60” and
$108,158.40 for the 2022–2023 school year “within 25 calendar
days of the submission of copies of invoices for such services.”
FOFD at 14–15. Therefore, the plaintiff must submit invoices in
order to be reimbursed.
In connection with the plaintiff’s reply papers, the
plaintiff provided documents setting out iBrain’s supplemental
tuition which amounts to $65,041.60 for the 2021–2022 school
year, Bellantoni Decl., Ex. 4, and $108,158.40 for the 2022–2023
school year, id., Ex. 5. While the costs enumerated in these
15

exhibits match the language in the FOFD, the documentation
submitted provides only the prospective cost of related services
for the relevant years. They are not invoices for the services
actually rendered or the amount actually paid.
Accordingly, the plaintiff’s motion for summary judgment to
require the DOE to pay for “related services” is denied without
prejudice to the ability of the plaintiff to submit the required
invoices to the DOE. To the extent there is any ambiguity in the
documents to be provided to the DOE to justify reimbursement for
the related services, the parties can raise the issue on remand
to the IHO.
CONCLUSION
The Court has considered all of the parties’ arguments. To
the extent not specifically addressed above, those arguments are
either moot or without merit. For the reasons explained above,
the parties’ cross-motions for summary judgment on the
transportation issue are denied without prejudice and remanded
to the IHO. The plaintiff’s motion for summary judgment on the
related services issue is denied without prejudice and the
defendant’s motion for summary judgment on that issue is granted
to the extent that the plaintiff’s requested relief is denied
without prejudice. The Clerk is directed to enter Judgment

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