Reyes v Mills

[*1] Reyes v Mills 2009 NY Slip Op 50904(U) [23 Misc 3d 1123(A)] Decided on April 8, 2009 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 8, 2009
Supreme Court, Albany County

Fidel Reyes and Carmen Reyes, on behalf of their daughter Jahaira Reyes, Petitioners,

against

Richard P. Mills, Commissioner of Education and Bedford Central School District, Respondents.



9841-08



Donald L. Doernberg, Esq.

Attorney For Petitioners

c/o Pace Law School

78 North Broadway

White Plains, New York 10603-3796

Andrew Cuomo

Attorney General of the State of New York

Attorneys For Respondent Mills

Michael McCartin, Esq., of counsel

The Capitol

Albany, New York 12224-0341

Keane & Beane, P.C.

Attorneys For Respondent Bedford Central School District

Stephanie L. Burns, Esq., of counsel

Suzanne E. Volpe, Esq., of counsel

445 Hamilton Avenue

15th Floor

White Plains, New York 10601

Henry F. Zwack, J.

In this CPLR Article 78 proceeding, petitioners seek a judgment declaring that their daughter is not properly classified as a Limited English Proficient (LEP) student and for other related relief. Respondents oppose the petition. Oral argument was heard on March 20, 2009.

In 2002, upon entering the Bedford Central School District (BCSD) as a kindergartener, petitioners' daughter (J.R.) was classified as an LEP student. She received English as a Second Language (ESL) instruction from kindergarten through early 2008. This instruction ceased in light of her receipt of other services, despite respondent BCSD believing that J.R. would still benefit from ESL instruction. Each year she has taken the New York State English as a Second Language Achievement Test (NYSESLAT).

Petitioners argue that J.R. was never properly classified as an LEP student because English was, and remains, her only language. While petitioners speak Spanish and English, they aver that J.R. grew up speaking only English. Because of her classification as an LEP student, J.R. has been required to take the NYSESLAT. She has been required to take the test each year because she has not performed at the proficient level to date. Petitioners argue that J.R. has not performed at the proficient level because she has educational disabilities, unrelated to her English language skills. Petitioners provide an evaluation report that includes a finding that J.R. suffers from attention deficit hyperactivity disorder (ADHD) and mild dyslexia.

Petitioners note that on January 8, 2008 they filed a petition pursuant to Education Law 4404, seeking J.R.'s discharge from the ESL program and from the requirement that she take the NYSESLAT. On August 14, 2008, the petition was dismissed on the ground that it was untimely. Petitioners argue that the decision dismissing the petition was arbitrary and capricious. The petition in this proceeding seeks the following relief: 1) a declaration that J.R. is not properly classified as LEP; 2) an order enjoining respondents from requiring J.R. to receive ESL instruction; 3) an order enjoining respondents from requiring J.R. to take the NYSESLAT, or alternatively, an order directing the Commissioner to enter such an order or ordering him to consider J.R.'s appeal on the merits.

In opposition to the petition, Respondent Richard P. Mills, Commissioner of Education (Commissioner), argues that the present proceeding is barred by the four month statute of limitations. Respondent Mills contends that the actual decision at issue, the 2002 decision of the BCSD to place J.R. into the ESY program, is barred by the four month statute of limitations, and that the continuing wrong doctrine does not apply. He also argues that even if his August 14, 2008 is considered by this Court, it was not [*2]arbitrary and capricious or irrational.

Also in opposition to the petition, Respondent BCSD argues that the Commissioner's decision of August 14, 2008 was not arbitrary, capricious, unlawful or an abuse of discretion, that petitioner's appeal to the Commissioner was untimely and without good cause for the delay, which prejudiced BCSD, and that the BCSD has followed the law with respect to their identification of J.R. as LEP.

In reply, petitioners argue that they have set forth a claim for a continuing wrong and therefore their claims are not barred by the statute of limitations.

The Court notes that the petition seeks to overturn the Commissioner's August 14, 2008 decision, and either have this Court provide affirmative relief or have the Commissioner reconsider the issue on the merits. Therefore, this Court must consider whether that decision was arbitrary and capricious or irrational.

CPLR 7803(3) provides that a proceeding against a body or officer may be commenced when a question is raised as to "whether a determination was made in violation of lawful procedure, as affected by an error of law or was arbitrary and capricious or an abuse of discretion . . ." (CPLR 7803[3]). "An administrative action is arbitrary and capricious when it is without a sound basis in reason and without regard to the facts" (Clausen v New York State Dept. of Health, 232 AD2d 917, 918 [3d Dept 1996] [citing Pell]). "Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard" (Pell v Bd. of Educ., 34 NY2d 222, 231 [1974]).

First, the Court does not find that the Commissioner's decision was arbitrary and capricious or irrational with respect to its determination of the timeliness of petitioners' appeal. The Commissioner noted that the appeal was required to be brought within 30 days and it was commenced more than five years after petitioners' daughter was placed in the ESL program and after she was found to be LEP. The Commissioner concluded that the continuing wrong doctrine did not apply because it was the single act of screening her and finding her to be LEP in 2002 that was at issue. The Court does not find this determination to be arbitrary and capricious or irrational (see, e.g., Selkirk v State of New York, 249 AD2d 818 [3d Dept 1998]; Ariadne Financial Services Pty. Ltd. v United States, 133 F3d 874, 879 [Fed. Cir. 1998]). The Court has considered the case law submitted by petitioners but does not find that it compels a contrary finding. The present dispute is petitioners' claim that their daughter should not have been classified as LEP in 2002 and therefore should not be subject to the continuing requirement to take the NYSESLAT. It is therefore clear that there is a single act that petitioners are attempting to dispute, the 2002 LEP finding, and that petitioners are upset by the continuing effects of that finding, i.e., the requirement that the NYSESLAT be administered yearly until their daughter passes the test with a certain score. This set of facts supports the Commissioner's finding that the continuing wrong doctrine is not applicable.

The Commissioner also found that petitioners had not set forth an unusual [*3]circumstance to excuse the long delay. The Court also notes that BCSD argues that they are prejudiced by the long delay because they no longer possess the home language questionnaire that was filled out by petitioners and used in the 2002 determination that their daughter was LEP.

Additionally, while part of petitioners' relief sought is a decision on the merits, the Court notes that in dicta the Commissioner noted in his determination that if their appeal was considered on the merits it would have been denied. The Commissioner noted the change in certain regulations since 2002, which previously did not require a native language interview to be conducted with petitioners' daughter. The Commissioner also noted his belief that the affidavits submitted from BCSD established that the minimum requirements of the regulations in effect were met.

In summary, the Court does not find that the determination of the Commissioner dated August 14, 2008 was arbitrary and capricious or irrational and therefore petitioners' present proceeding must be denied and dismissed.

Accordingly, it is

ORDERED, that the petition is denied.

This constitutes the Decision, Order and Judgment of the Court. All papers including this Decision, Order and Judgment are returned to the attorneys for Richard P. Mills, Commissioner of Education. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:April, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice