Matter of Department of Educ. of the Archdiocese of N.Y. v Carranza

Annotate this Case

[*1] Matter of Department of Educ. of the Archdiocese of N.Y. v Carranza 2021 NY Slip Op 51312(U) Decided on January 7, 2021 Supreme Court, Richmond County Ozzi, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 7, 2021
Supreme Court, Richmond County

In the Matter of the Application of Department of Education of the Archdiocese of New York, MICHAEL DILEO and DIANA DILEO, Individually and as parents and guardians of A.D. and J.D., infants, ALLISON NASH-CERDA, individually and as parent and guardian of J.C. and A.C., infants, DANIELLA MESSINA and NEAL MESSINA, individually and as parent and guardians of N.M., an infant, MATTHEW MAHONEY, individually and as parents and guardian of M.F.M. and J.F.M., infants, and NICOLE FRESCA, individually and as parent and guardian of R.F., an infant, Petitioners,
For a Judgment under Article 78 of the CPLR

against

Richard A. Carranza, CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Respondents.

Index No. 85205/2020

Wayne M. Ozzi, J.

By Petition dated November 18, 2020, Petitioners move this Court for an Order requiring Respondents to provide the COVID-19 testing resources made available by Respondents to students in public schools in areas designated as "yellow" precautionary zones to students who attend Archdiocese schools in accordance with section 912 of the Education Law. Respondents oppose the Petition. Oral argument was held before the Court on December 22, 2020. For the reasons set forth below, the Petition is granted.

Background and Procedural History

Executive Order 202.68, enacted into law by Governor Cuomo on October 9, 2020, provides that schools in a precautionary zone, (i.e., a yellow zone) may remain open to in-person instruction. Schools in areas with the highest concentration of COVID-19 cases, (i.e., a red zone), or in a warning zone, (i.e., an orange zone), must close in-person instruction for at least two weeks. Interim Guidance issued by the New York State Department of Health on November 14, 2020, further provides that public and non-public schools in designated yellow zones may only remain open to in-person instruction if they undertake testing of a portion of their in-person students, staff, and teachers, specifically 20% of that population at least once every two weeks. See Addendum to Interim Guidance on Mandatory COVID-19 Testing in Public and Non-Public [*2]Schools Located in Areas Designated as 'Yellow Zones' Under the New York State Cluster Action Initiative October 9, 2020". According to updated guidance issued by the New York State Department of Health on November 3, 2020, after re-opening in-person instruction in a school located in a geographic area still designated as a red or orange zone, "[o]nce each week, any school in the red and orange zone that have reopened must attest that they have tested 25% of the in-person school population and provide a line list." See Department of Health "Interim Guidance on COVID-19 Test-out for Public and Non-Public Schools Located in Areas Designated as 'Red or Orange Micro-Cluster Zones' Under the New York State Micro-Cluster Action Initiative". Further, the New York City Department of Health provided guidance to New York City Schools, stating that all schools located within a yellow zone that perform on-site testing or testing at a local testing site are entitled to "free COVID-10 rapid testing kits that NYC can distribute." A properly trained health care provider would be required to "administer and interpret the tests." If a school cannot meet the New York State testing requirement, "[they] must continue remote learning for the duration of the zone designation." See "NYC Department of Health COVID-19 Information for Nonpublic and Charter Schools".

In addition to the COVID-19 test kits, Respondents have provided on-site personnel to all city public schools one day per month to perform random diagnostic testing for COVID-19 for between ten and twenty percent of the school's population. See "New York City Department of Education COVID-19 Testing for Students and Staff". Petitioners made multiple requests from September 29 through November 9, 2020, to various employees of the Department and Health and Mental Hygiene and the Department of Education, to provide these testing services to their students. See Petition pp. 11-12. Petitioners claim that on each of these occasions, they did not receive a satisfactory response from either Respondents or their health partners. Respondents do not assert that they provided any responses at that time. However, in their answer to the petition, Respondents concede that Petitioner, through counsel, sent a letter requesting these testing services on November 15, 2020, and that such request was denied by letter of respondents' General Counsel, on December 1, 2020.

On November 13, 2020, Dave A. Chokshi, the Commissioner of the Department of Health and Mental Hygiene, advised Mr. Michael A. Deegan, the Archdiocese's Superintendent of Schools that a large portion of Staten Island would be designated as a yellow zone that evening at 10:00 p.m., thus triggering the twenty percent testing mandate in order for the schools to remain open to in-person instruction. Petition p. 12. Petitioners again made multiple requests to Respondents between November 13 and November 16 in an effort to obtain these testing services, to no avail. Petitioners represent that, in the interim, the Archdiocese has partnered with SOMOS Community Care to assist with the required bi-weekly random COVID-19 testing of the school population, bearing the cost itself. See Petition pp. 12-13. However, Petitioners contend that, due to financial hardship, the Archdiocese may soon have close its schools indefinitely due to its inability to bear the costs of the mandatory testing for schools located in areas designated as yellow zones.

A hearing was held before this Court on November 23, 2020, at which time the Court granted a preliminary injunction and, on November 24, 2020, issued an Order requiring Respondents to comply with Section 912 of the Education Law and "immediately provide as of the date of this Order all New York City nonpublic schools with COVID-19 testing resources and services in the same manner and to the same extent as Respondents have been providing those health and welfare services to public schools in designated COVID-19 yellow zones in [*3]New York City." See November 24, 2020 Order.

Legal Analysis

Section 912 of the Education Law provides, in pertinent part:

The ...board of education of every school district shall, upon request of the authorities of a school other than public, provide resident children who attend such school with any or all of the health and welfare services and facilities which are made available by such board of education to or for children attending the public schools of the district. Such services may include, but are not limited to, all services provided by a physician, physician assistant, dentist, dental hygienist, registered professional nurse, nurse practitioner, school psychologist, school social worker, or school speech therapist, and may also include dental prophylaxis, vision and hearing screening examinations, the taking of medical histories, and the administration of health screening tests, the maintenance of cumulative health records, and the administration of emergency care programs for ill or injured students. (emphasis added).

When interpreting a statutory provision, it is fundamental that a court should "attempt to effectuate the intent of the legislature," the best indication of which is the language of the statute itself, "giving rise to the plain meaning thereof." (Majewski v. Broadalbin-Perth Central School District, 91 NY2d 577, 583 (1998), (quoting Patrolmen's Benevolent Association v. New York, 41 NY2d 205, 208 (1976)). It has long been held that courts should focus on "the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add or take away that meaning." Tompkins v. Hunter, 149 NY 117 (1896).

The Appellate Division, Second Department, addressed Education Law Section 912 in Matter of Richard K. v. Petrone, 31 AD3d 181 (2d Dep't 2006). There, the Yonkers city school board provided a nurse twice monthly to a parochial school. Despite the school principal making a request, the board of education refused to provide a seven year old student, who was diagnosed with insulin-dependent Type 1 Diabetes, with more frequent nursing services to oversee daily glucose testing and, if necessary, insulin injections. (Id. at 182). Petitioners, the student's parents, hired a private nursing service at their own expense to perform the close testing and administer insulin injections at the school.

The Second Department noted that New York is "deeply concerned that all its school children receive adequate health and welfare services," which is expressly stated in the New York State Constitution and its statutory law. (See Matter of Richard K. v. Petrone, supra, (citing Filler v. Port Washington Union Free School District, 436 F. Supp. 1231, 1236 (1977)). The Second Department held that Education Law Section 912 required that the student be provided with nursing services equivalent to those that would be available to her if she were attending a public school in the district, stating that "services must be provided to students attending a nonpublic school in essentially the same manner and to the same extent as they are offered to students in the school district's public schools." Id. at 183-184, (citing Matter of Greve v. Board of Education of Union Free School District No. 27, 43 AD2d 851 (2nd Dep't 1974)).

COVID-19 Testing as a "Health and Welfare Service"

In the matter presently before the Court, it is undisputed that Respondents are not [*4]providing the COVID-19 testing resources to non-public schools that they are providing to public schools. Despite Respondents' contentions to the contrary, once Respondents decided to provide COVID-19 testing kits and resources to public schools, they were required by the plain meaning of Education Law 912 to provide the same to those students attending non-public schools within New York City. Respondents' claim that the COVID-19 testing services provided to public school students does not constitute a "health and welfare service" as contemplated by Education Law Section 912, but is merely for surveillance testing purposes to identify asymptomatic students and staff to "gauge the rate of infection in the school community" (Affirmation in Opposition n. 5) and not for the benefit of the particular child being tested, belies logic and is contrary to the very broad language of Education Law Section 912. (see, NYC Health Department, Checklist for In-Person Instruction at Pre-K to Grade 12 Schools, 11-20-10 (NYSCEF Doc. 48)). The Legislature's broad intent is further highlighted by the phrases "any and all" and "but not limited to" when describing the health and welfare services to be provided.

As Petitioners correctly point out in their Reply, Section 912 is devoid of any language that would indicate the Legislature's intent that the statute only apply to health and welfare services that specifically benefit a particular child. See Petitioner's Reply p. 7-8; see also Affirmation in Opposition n. 5. Thus, the affidavit of Christopher Groll, a Senior Advisor to the Office of School Health, to the effect that COVID-19 testing is not made available to particular students who may request it, has no relevance to the Court's analysis. Moreover, as this Court previously noted, while the Governor could have suspended or otherwise modified section 912 of the Education Law when issuing Executive Order 202.68, to comport with Respondents' interpretation, as he has done in prior Executive Orders and within Executive Order 202.68 itself, he did not do so. See 11/23/20 Certified Hearing Transcript. His failure to do so is an indication that its exclusion was intended (see, Pajak v. Pajak, 56 NY2d 394, 397, citing McKinney's Cons Laws of NY, Book 1, Statutes Sec. 74 (applying this rule of statutory construction to the Legislature); see also, McKinney's Statutes, Sec. 240). Nor can the failure to suspend or modify Section 912 be cured by administrative missives, advisories, guidance, memoranda, or regulation of the City or State Health Departments (see generally, 2 NY Jur. 2nd Administrative Law Sec. 180; Matter of Deeds, 156 Misc 2d 805; In Re Will Sharp, 6 Misc 3d 1041(A)).

Applicability of Education Law Sec. 912 to the Facts at Bar

Respondents further argue that the Governor's Executive Order 202.68 did not suspend, modify, or even address Education Law Sec 912 simply because it does not apply to the factos of this case, and relying on the language of the Executive Order and the State Department of health (Memorandum of Law in Opposition to the Petition, 12/10/20, p. 9). Again, they rely on affidavits of Christopher Groll, Senior Advisor to the Office of School Health, who avers that Respondents do not provide COVID-19 tests to individual students who want it, and Daniel H. Stephens, M.D., Deputy Commissioner for Family and Child Health at the New York City Department of Health and Mental Hygiene, who opines that surveillance testing merely provides information to guide policy decisions, and "is not done as a clinical test, where the results are used to inform the health care of that particular individual." Mr. Groll's statement is merely a recitation of Respondent's practices, and Dr. Stephen's statement is belied by the admissions made at oral argument that students who test positive are informed of same, and statements by Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, quoted [*5]below. Neither affidavit is probative on the issue of the purpose and meaning of Education law Section 912. While it may be true that long established practice of officers whose duty it is to construe, execute and apply a statute can be strong evidence of its meaning, it is not controlling. (People ex rel. Weiss v. City of Buffalo, 84 NYS 434, 437). Construction of a statute is for the Court. (McKinney's Statutes, Sec. 129), including the question of whether certain practices fall within the purview of a statute (People ex rel. Weiss v. City of Buffalo, supra). In Weiss, a long standing practice not to award a contract for paving to the lowest bidder was held to contradict the clear language of an applicable statute. Respondent City of Buffalo contended that the statute at issue simply did not apply to paving contracts. Deference to the practices and determinations of Respondents is not required here.

Respondents' Testing as a Diagnostic Tool

Respondents point to no compelling authority, other than their own self-serving assertions, to support the notion that diagnostic testing of a serious, potentially fatal illness, during a global pandemic, is not a "health screening" or a "health and welfare service" that falls within the purview of Section 912. When asked at a forum sponsored by UC Berkeley on October 8, 2020 what colleges can do to keep students safe, Dr. Anthony Fauci replied, "Test all students before they come onto campus .Then do surveillance testing every few days .When a student gets infected, have the capability of isolating them." ("Coronavirus: Dr. Fauci estimates 'some degree of normality' toward the end of 2021." By Kate Larsen: Coronavirus California (Oct. 9, 2020). His characterization of surveillance testing as a diagnostic tool in a college setting is equally applicable to the testing at issue here.

Respondents' assertions that their testing is designed for data-collection only, are equally unpersuasive, given their own admission, at oral argument, that their own testing can and does identify individual students who test positive, that parents of students who test positive are immediately notified, that the student is immediately sent home or excluded from the school community with instructions to contact a health care provider, and that the appropriate health authorities are notified of the positive result. (see, NYC Health Department, Checklist for In-Person Instruction at Pre-K to Grade 12 Schools, 11-20-20 (NYSCEF Doc 48)). As previously stated, the Court must look to the language of the statute to discern the Legislature's intent. In this instance, the absence of words that would qualify or diminish the reach of the Statute speaks volumes as to the Legislature's intent to provide parity of "health and welfare services" to those students attending public and private schools within a school district. (See Education Law Section 912). The Court is convinced that the surveillance testing performed by Respondents is much more than a data-collection and monitoring tool that Respondents would have this Court believe; it is clearly a health and welfare service contemplated by the Education Law.