Avaras v. Clarkstown Central School District et al
Filing
92
OPINION & ORDER re: 81 MOTION for Reconsideration re; 80 Clerk's Judgment,. filed by Connie Avaras. In light of the foregoing, Plaintiff's Motion is DENIED. The Court confirms that the District was ordered to pay tuition reim bursement for the 2012-13 school year, for which it denied N.A. a FAPE, and that the determination of whether Plaintiff is entitled to tuition reimbursement from the year Plaintiff filed her due process complaint through the 2017-18 school years, under the pendency law, are remanded to the IHO for reconsideration. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 81 and to mail a copy of this Order to Plaintiff at her address as listed on ECF. This constitutes the Court's Order. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 5/20/2019) (rj) Transmission to Civil Case Openings Clerk for processing.
UNITED STATES DISTRJCT COURT
SOUTHERN DISTRJCT OF NEW YORK
CONNIE AV ARAS, individually and as parent of N.A.,
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Plaintiffs,
-against-
No. 15 CV 9679 (NSR)
CLARKSTOWN CENTRAL SCHOOL DISTRJCT,
BOARD OF EDUCATION FOR THE CLARKSTOWN
CENTRAL SCHOOL DISTRJCT, and NEW YORK
STATE DEPARTMENT OF EDUCATION,
OPINION & ORDER
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Connie A varas, individually and as parent ofN.A., commenced this action prose
against the Clarkstown Central School District (the "District"), the Board of Education for the
District (the "Board") (collectively the "District Defendants"), the New York State Department of
Education (the "Department"), and the following Department officials: Mary Ellen Elia, the State
Commissioner of Education ("Elia"), Christopher Suriano, the Assistant Commissioner of Special
Education ("Suriano"), Joanne Lacrosse, Coordinator of Special Education Policy and
Professional Development ("LaCross"), Noel Granger, Supervisor of Program Development and
Support Services ("Granger"), and Jackie Bumbalo, Coordinator of Upstate Regional Special
Education Quality Assurance ("Bumbalo") (collectively, the "Department Officials" and with the
Department, "Department Defendants") 1 pursuant to the Individuals with Disabilities Education
Improvement Act ("IDEA" or "IDEIA"), 20 U.S.C. § 1400 et seq., Title II of the Americans with
1
The Department Officials were not parties to Plaintiffs original complaint, but were added on February 8, 2017,
when Plaintiff filed the SAC.
1
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Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., Section 504 of the Rehabilitation Act ofl973
("RA"), 29 U.S.C. § 794, and 42 U.S.C. § 1983 ("Section 1983").
In June 2017, Defendants filed a Motion for Summary Judgment, (ECF No. 43), which this
Court adjudicated on September 28, 2018, (Order, ECFNo. 78), and revisited on October 15, 2018
(Amended Order, ECF No. 79). Presently before the Court is Plaintiffs Motion for
Reconsideration of the Court's Amended Order dated October 15, 2018 (Plaintiffs Motion ("Pl.
Mot."), ECF No. 81.) For the reasons set forth below, the Plaintiffs motion is DENIED.
BACKGROUND
The facts for this case have been articulated multiple times in this Court's previous
decisions and most recently in this Court's Amended Order. The Court assumes the parties'
familiarity with them.
LEGAL STANDARD
Reconsideration of a previous order is "an extraordinary remedy to be employed sparingly
in the interests of finality and conservation of scarce judicial resources." In re Initial Pub. Offering
Sec. Litig., 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and quotation omitted),
aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ. 3430, 05 Civ. 4759 & 05
Civ. 4760, 2006 WL 1423785, at *l (2d Cir. 2006). Motions for reconsideration are governed by
Local Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b), and "[t]he standard for granting a
motion for reconsideration ... is strict." Targum v. Citrin Cooperman & Co., LLP, No. 12 Civ.
6909 (SAS), 2013 WL 6188339, at* 1 (S.D.N.Y. Nov. 25, 2013). They are "addressed to the sound
discretion of the district court and are generally granted only upon a showing of exceptional
circumstances." Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990).
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Critically, a motion to reconsider "is not a vehicle for ... presenting the case under new
theories ... or otherwise taking a second bite at the apple." Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quotation and citation omitted); see also Nat'!
Union Fire Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting
Polsby v. St. Martin's Press, No. 97 Civ. 0690(MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18,
2000)) (in moving for reconsideration, '"a party may not advance new facts, issues, or arguments
not previously presented to the Court."') Such motions are generally denied '"unless the moving
party can point to controlling decisions or data that the court overlooked."' Analytical Surveys,
684 F.3d at 52 (quoting Shrader v. CSXTransp., Inc., 70 F.3d 255,257 (2d Cir. 1995)).
DISCUSSION
Plaintiff appears to seek reconsideration of the entire Amended Order. (See Pl. Mot. at 25)
("Due to all of the documented evidence included and attached herein, Plaintiff respectfully
requests Your Honor reconsider your decision in its entirety, inclusive of FAPE 2013/14, ADA,
504 RA, 1983 CLAIMS, Plaintiff's counterclaim for 2014/15 FAPE, remand for retroactive
pendency tuition, transportation reimbursement for 2012 and 2013, and attorney fees.")
Plaintiff's Motion is facially unsound.
First, it appears that Plaintiff's arguments
regurgitate the arguments already made in her prior briefs. Second, Plaintiff's effort to use the
motion for reconsideration as a carte blanche review of the decision the Court issued is
procedurally improper. See Local Rule 6.3 ("There shall be served with the notice of motion a
memorandum setting forth concisely the matters or controlling decisions which counsel believes
the Court has overlooked.") Nevertheless, in the interest of finality, the Court will briefly address
Plaintiff's material points.
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1. Ruling that District Provided N.A. a FAPE for 2013-14 School Year
Plaintiff contests the deference the Court afforded to the SRO and the accuracy of the
evidentiary record from the due process hearing before the IHO. Although Plaintiff may disagree
with the decision the Court reached, Plaintiff fails to provide authority showing that the Court
incorrectly assessed the administrative record and its findings.
As Defendants note, the role of federal courts in reviewing state education decisions,
pursuant to IDEA, is well-established and circumscribed. C.F ex rel. R.F v. New York City Dep't
of Educ., 746 F.3d 68, 77 (2d Cir. 2014) ("The standard of review "requires a more critical
appraisal of the agency determination than clear-error review but nevertheless falls well short of
complete de nova review.") It is precisely the level of review that the Court used in its analysis.
(See Amended Order, at 23-26) (showing that the Court assessed the underlying evidentiary record
to the extent that it colored the IHO and SRO's processes and bases for its decisions, but
appropriately deferred to the SRO's determinations regarding the substantive merits of the IEPs.)
Further, in its August 28, 2018 decision, the Court remanded the issue of reimbursement
for the cost of tuition for the 2012-13 through 2013-17 school years, noting that it believed the
IHO only directed the district to provide transportation costs for the 2013-14 school year and "d[id]
not illuminate why tuition was not also directed, or whether it was requested in the first place."
See Avaras v. Clarkstown Cent. Sch. Dist., No. 15 CV 9679 (NSR), 2018 WL 4103494, at *5
(S.D.N.Y. Aug. 28, 2018).
On remand, the IHO answered this question and found that the parent did not request tuition
through stay-put in the due process complaint notice or at any time prior to the IHO's final decision
and only invoked pendency regarding transportation, not tuition reimbursement. (See IHO
Decision at pp. 4-5). On January 23, 2019, the SRO reviewed the IHO Decision and determined
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that the IHO's finding was supported by the hearing record and briefs-which it found to be
thorough, unbiased, and based on the same arguments Plaintiff now raises. (See SRO Decision 18138, dated January 19, 2019) (" .. .in requesting pendency, the parent's attorney specifically
requested transportation; she explained that, at the time of the September 2012 CSE meeting, the
student was privately placed but the CSE agreed to provide transportation"). 2
Plaintiff now cites to much of the same evidence that the IHO and SRO already reviewed.
Accordingly, absent newly discovered information showing that the IHO and SRO's decisions
regarding a FAPE and tuition reimbursement for 2013-14 were erroneous, the Court need not
disturb their finding that the District provided a FAPE for 2013-14. Plaintiffs motion to reconsider
this finding is therefore denied.
2. Dismissal of Plaintiff's Non-IDEA Claims
Plaintiff next asks the Court to reconsider its dismissal of Plaintiffs ADA claims. (See PL
Mot. at 12-16.) Plaintiff does not, however, raise new legal arguments, nor provide evidence or
case law that the Court overlooked in its underlying decision. This Court already explained in its
Amended Order that Plaintiff did not adequately allege an ADA claim. (See Amended Order, at
34-36.)
Regarding whether N:A. was "disabled" under the ADA, the Court explained that the ADA
and IDEA set forth distinct legal standards in their definitions of "disability" such that an
individual does not qualify for the AD A's protections simply by virtue of being "disabled" under
the IDEA. (Amended Order, at 35.) It further held that nothing in Plaintiffs Complaint showed
that N.A. was separately covered by the ADA beyond what comprised his eligibility under IDEA.
(Id.) ("Plaintiff has offered no allegations separate from those supporting his IDEA claims that
2
Available at https://www.sro.nysed.gov/decision/2018/18-138.
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would allow the Court to infer that N.A. is limited in a major life function such that he would
qualify as disabled under [the ADA].") As a matter of law, the Court found this insufficient to
allege ADA-based claims. (Id.) Plaintiff has not pointed to any facts or cases that the Court
overlooked in arriving at its decision. Accordingly, the Court's determination that N.A. did not
qualify as disabled remains settled.
Regarding whether the District discriminated against N.A. on the basis of disability, the
Court also found that Plaintiff failed to allege that N.A. was "excluded from any programs, denied
benefits, or otherwise discriminated against on the basis of his disability." (Id. at 36.) (emphasis in
original). It further found that there were no allegations reflecting that the District had malicious
intent or that it acted in bad faith when it grouped N.A. with other disabled students, as opposed
to with non-disabled students. In other words, the Court held that even if N.A. were deemed
"disabled" under the ADA, there were insufficient allegations to show that the District harbored
the requisite level of intent to color an ADA discrimination claim.
The Court has reviewed Plaintiffs myriad reasons for why she believes that N .A. was
discriminated against on the basis of his disability, but it ultimately finds, as it did before, that: 1)
the Complaint simply does not allege that N.A. has the requisite disability to be covered by the
ADA; and 2) Plaintiff does not adduce proof from the record demonstrating that District acted with
deliberate or reckless indifference to N.A.'s federally protected rights or that the District acted in
bad faith or with gross misjudgment towards N.A. on the basis of his disability.
Plaintiff essentially raises new arguments. First, she argues that it was discrimination to
place N.A. in a class with disabled children without an evaluation. Second, she argues that it was
discrimination to subject the parent of a disabled child to arduous litigation proceedings.
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Plaintiffs discrimination argument contradicts itself. Plaintiff cannot simultaneously argue
that N.A. was disabled within the meaning of the ADA and then argue that the school was
deliberately indifferent by providing N.A. with the types of resources that are afforded to other
disabled students. Similarly, there is no legal basis to Plaintiffs second argument, which is that it
is discriminatory "to expect a pro se parent to afford and be able to properly and effectively
represent their child against a host of highly paid school district attorney's is discrimination
[because] [t]he parties are not being treated equally in a court of law which is federally funded .... "
The District does not decide how parties litigate, pro se or otherwise. And neither the District Court
nor District set the administrative adjudicative process. That process has been established by
Congress. Therefore, responsibility for Plaintiffs litigation strategy cannot be imputed on the
District, and the innate disadvantages of being a prose litigant cannot show deliberate indifference
or gross misjudgment. But in any event, these arguments are inappropriate on a motion for
reconsideration.
Finally, Plaintiff cannot add a new claim-for ADA retaliation-at this point in litigation.
This claim was not alleged in the second amended complaint, and in any event, the Court still
holds that N.A. did not qualify as disabled under the ADA on the alleged facts. Accordingly,
Plaintiffs motion to reconsider dismissing the ADA claims is denied.
3. Dismissal of Plaintiff's Section 1983 Claim
Plaintiff also seeks to have the Court reconsider denying a 1983 claim against the District.
In this Court's Amended Order, it held the following:
To the extent that Plaintiff is seeking to assert claims against the District pursuant
to Section 1983, such claims also fail. Having availed herself of the administrative
review process, Plaintiff is not entitled to pursue a damage claim pursuant to § 1983
without plausibly alleging she was denied the procedural safeguards to which she
was entitled under the IDEA. See Streckv. Board ofEduc., 280 F. App'x 66, 68 (2d
Cir. 2008) ("plaintiffs may not rely on § 1983 to pursue monetary damages for
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violations of the IDEA" where "they were afforded a hearing before an impartial
hearing officer and review by a state review office").
Plaintiff does not claim that she was denied access to the administrative review process.
Nor does she point to authoritative case law that challenges the binding authority of the Second
Circuit, precluding Plaintiffs from getting money damages for IDEA violations where they were
afforded the administrative review process. In actuality, Plaintiff again takes issue with the way
the administrative review process is set up and the outcome of her case. The Court sympathizes
with Plaintiff insofar as the innate frustrations of adjudication. But that is not a legal basis for the
Court to overturn its prior decision. Accordingly, the Court declines to reconsider this claim.
4. Attorney's Fees
Plaintiff argues that she requested reimbursement of attorney fees in her original complaint
and carried the request all the way to the district court. (Pl. Mem. at 24.) Plaintiff adds that she
prevailed on a significant issue that achieves some of the benefit she sought when she first filed
suit, which is the Court's determination that the District did not provide a FAPE in 2012-13. (Id.)
Plaintiff adds that though she is now pro se, she did retain counsel in the initial proceedings.
Defendants correctly note that this issue of Attorney's Fees was addressed in the Court's
August 28, 2018 decision, but not in the Amended Order for which she requests reconsideration.
Accordingly, the award of attorney's fees is an issue that is not properly before this Court, and
Plaintiff has not provided any reason why she was unable to raise the issue for reconsidering this
point earlier, in a timely fashion.
Beyond this procedural issue, however, the Court also finds it improper to award
Attorney's Fees where Plaintiff has provided no documentary evidence of when an attorney was
retained, for how long, for which parts of the litigation, and at which rates. Indeed, Plaintiffs brief
supports that, at best, an attorney was briefly retained during the administrative process, but not
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during the pendency of this litigation. As Plaintiffs request is improperly made and improperly
supported, the Court declines to reconsider the issue of attorney's fees at this juncture.
5. Tuition Reimbursement for 2012-13 School Year
Plaintiff claims that despite the Court ruling in her favor for the 2012-13 school year, the
District has not reimbursed her for that year's school tuition. (Pl. Mot. at 23.) To the extent that
the Court ruled in Plaintiffs favor regarding the District not providing FAPE for the 20 l 213school year, the Court's holding implied that the District was being ordered to provide direct
funding or reimbursement of tuition at Hawk Meadow for that school year. To the extent that
there was any ambiguity, the Court clarifies this now. Hence, that order stands.
6. Whether Court Should Have Adjudicated a FAPE for 2014-15
Plaintiff also claims that she requested prospective tuition for 2014-15 school year in her
initial complaint as a safeguard for pendency placement. (Pl. Mem. at 22.) She adds that 2014-15
qualified for pendency prospectively then and retroactively now. (Id.) She also points out that that
the Court, in a footnote in the Amended Order, stated that 2014-15 would be included in the IHO
remand with respect to retroactive pendency but that there was again no IEP in place at the start of
the 2014-15 school year, the IHO made mention of it, and the SRO, in its 2015 decision, said it
was too early to decide FAPE. (Id.)
To the extent that the IHO has not yet assessed FAPE for 2014-15, the Court's Amended
Order remanding that year through the 2017-18 school year to the IHO for consideration stands.
The Court explained in its prior decision that at the time it rendered its decision, the only claims
that were fully exhausted were the following: "( 1) whether N .A. received a FAPE during the 20112012, 2012-2013, and 2013-2014 school years; and (2) whether his unilateral placement at Hawk
Meadow beginning in the 2011-2012 school year was appropriate." (Amended Order, at 16).
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Plaintiff has not adduced new evidence suggesting that the Court's determination was incorrect.
Rather, in reiterating that IHO and SRO have not yet addressed FAPE for 2014-2015, she shows
that the Court cannot assess a FAPE for that year as the issue is not administratively exhausted.
Accordingly, the Court's decision to remand 2014-15 through 2017-18 to the IHO, per the
pendency law, stands as is. Plaintiff's motion to reconsider it is therefore denied.
7. Dismissal of Claims Against State Defendants
Individual State defendants filed a brief opposing Plaintiff's Motion to Reconsider the
Court's decision to dismiss all of her claims against them. (ECF No. 87.) Plaintiff does not provide
any legal or factual basis on which the Court's dismissal of claims against them were in error.
Accordingly, to the extent Plaintiff attempts to seek reconsideration of the Court's previous
dismissal of claims against those State Defendants, these motion is denied.
CONCLUSION
In light of the foregoing, Plaintiff's Motion is DENIED. The Court confirms that the
District was ordered to pay tuition reimbursement for the 2012-13 school year, for which it denied
N.A. a FAPE, and that the determination of whether Plaintiff is entitled to tuition reimbursement
from the year Plaintiff filed her due process complaint through the 2017-18 school years, under
the pendency law, are remanded to the IHO for reconsideration. The Clerk of the Court is
respectfully directed to terminate the motion at ECF No. 81 and to mail a copy of this Order to
Plaintiff at her address as listed on ECF. This constitutes the Court's Order.
SO ORDERED,
Dated:
May 20, 2019
White Plains, New York
(
Nelson S. Roman
United States District Judge
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