Shepard v. The State Education Department/The University of the State of New York et al

Filing 104

AMENDED ORDER adopting Magistrate Judge's Report and Recommendation, denying defendant Springville-Griffith Institute Central School District Board of Education's motion to dismiss insofar as it seeks dismissal of the amended complaint as t ime-barred; and granting defendants' The State Education Department/The University of the State of New York, Paul F. Kelly and Richard P Mills' motion to dismiss. The Clerk of Court shall terminate defendants The Sttae Education Department/The University of the State of New York, Paul F. Kelly and Richard P. Mills. SO ORDERED. Signed by Hon. Richard J. Arcara on 9/30/2011. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

B.J.S., Individually and on behalf of N.S.,
a child with a disability,
v.

AMENDED ORDER
07-CV-456

The State Education Department/The
University of the State of New York,
PAUL F. KELLY, State Review Officer,
RICHARD P. MILLS, Commissioner of Education, and
SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL
SCHOOL DISTRICT BOARD OF EDUCATION,
Defendants.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to
28 U.S.C. § 636(b)(1)(A). On April 5, 2010, defendant Springville-Griffith Institute
Central School District Board of Education filed a motion to dismiss [Dkt. No. 49]
and on October 20, 2010, defendants Kelly and Mills filed a motion to dismiss
[Dkt. No. 61]. On August 18, 2011, Magistrate Judge Foschio filed an Amended
Decision and Order and Report and Recommendation recommending that
defendant Springville-Griffith Institute Central School District Board of
Education's motion to dismiss be denied insofar as it seeks dismissal of the
amended complaint as time-barred and that defendants The State Education
Department/The University of the State of New York, Paul F. Kelly and Richard P.
Mills' motion to dismiss be granted.

Defendant Springviille-Griffith filed objections to the Report and
Recommendation. Oral argument on the objections was held on September 26,
2011.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review of the Report and
Recommendation, and after reviewing the submissions and hearing argument
from the parties, the Court adopts the proposed findings of the Report and
Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report
and Recommendation, defendant Springville-Griffith Institute Central School
District Board of Education's motion to dismiss is denied insofar as it seeks
dismissal of the amended complaint as time-barred and defendants The State
Education Department/The University of the State of New York, Paul F. Kelly and
Richard P. Mills' motion to dismiss is granted.
The case is referred back to Magistrate Judge Foschio for further
proceedings.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: September 30, 2011
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