Appeal of ELAINE DE VERA, individually and on behalf of her son M.F., et al.,* from action of the New York City Department of Education regarding a contract for the statewide universal full-day pre-kindergarten program.

Decision No. 17,574

(January 29, 2019)

Sullivan & Cromwell LLP, attorneys for petitioners, Steven L. Holley, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent

ELIA, Commissioner.--In November 2015, petitioners challenged the New York City Department of Education’s (“DOE” or “respondent”) action in requiring execution of a contract as a condition of payment to Success Academy Charter Schools - NYC (“Success Academy NYC”) for Statewide Universal Full-day Pre-kindergarten (“SUFDPK”) programs established pursuant to Education Law §3602-ee at Success Academy Charter School - Harlem 1 (“SA Harlem 1”), Success Academy Charter School - Cobble Hill (“SA Cobble Hill”), and Success Academy Charter School - Williamsburg (“SA Williamsburg”).

On February 26, 2016, I issued a decision sustaining the appeal in part (Appeal of De Vera, 55 Ed Dept Rep, Decision No. 16,882) but upholding DOE’s requirement that Success Academy NYC execute a contract that allowed DOE to oversee the SUFDPK program as a condition of payment of SUFDPK funds.  The facts relevant to this proceeding are recited in detail in that decision and will not be repeated here.

In March 2016, petitioners sought review of the decision by commencing an Article 78 proceeding in New York State Supreme Court.  By Decision and Order dated June 8, 2016, the Supreme Court held that the decision was rational and not arbitrary and capricious, and, as a result, dismissed the Article 78 proceeding (In the Matter of the Application of Elaine De Vera, et al., Supreme Court, Albany County, Special Term; Elliott, III, Raymond J.; June 8, 2016).

Petitioners appealed to the Appellate Division, Third Department.  On June 8, 2017, the Appellate Division reversed the Supreme Court’s decision, concluding that:

[A]s the Commissioner’s determination regarding Success Academy’s request for funding was affected by its erroneous interpretation of Education Law § 3602-ee, we remit for the Commissioner’s reconsideration of Success Academy’s application for funding in a manner not inconsistent with this decision (De Vera v. Elia, 152 AD3d 13).

The Court of Appeals granted leave to appeal and, in a decision dated November 20, 2018, the Court affirmed the order of the Appellate Division (De Vera, et al. v. Elia, et al., __ NY3d __, 2018 NY Slip Op 07922).

Pursuant to the Appellate Division’s order — which was affirmed by the Court of Appeals — this matter was remitted for further proceedings not inconsistent with the Appellate Division’s decision.

Subsequent to the Court of Appeals’ decision, Success Academy NYC submitted a letter dated December 4, 2018, requesting, in part, that DOE be directed to remit a payment of $720,000, with interest, to Success Academy NYC for the prekindergarten program that it provided during the 2015-2016 school year.

In reconsidering Success Academy’s application for funding as instructed, I have taken administrative notice pursuant to §276.6 of the Commissioner’s regulations of the Motion for Leave to Appeal filed by DOE with the Court of Appeals (“Motion for Leave”), which is on file with the Department.  According to the Motion for Leave, DOE agreed that, upon remand, “the Commissioner will not be required to resolve any further question of fact or law.”  In the Motion for Leave, DOE notes that it “does not dispute petitioners’ calculation of the payment for providing [SUFDPK] in the 2015-2016 school year,” nor does it dispute “its obligation to pay that amount unless it prevails” at the Court of Appeals.  As DOE has indicated that it does not dispute petitioners’ calculation, nor its obligation to pay such amount, I find that DOE must remit payment to Success Academy NYC according to petitioners’ calculation and petitioners’ appeal is sustained to this extent.

I must, however, decline Success Academy NYC’s request that DOE be directed to pay interest.  It is well-established that such relief is not available in proceedings pursuant to Education Law §310 (see Appeal of the City School District of the City of New Rochelle, 35 Ed Dept Rep 198, Decision No. 13,514; Appeal of the Board of Education, Greenburgh Central School District No. 7, 33 id. 81, Decision No. 12,983).  Accordingly, I lack authority to award interest on the payment DOE must remit to Success Academy NYC.  Success Academy NYC’s citation to State Finance Law §16 and General Municipal Law §3-a in this regard is inapposite.  State Finance Law §16 applies to judgments against the State, a circumstance not presented herein, where respondent is the New York City Department of Education.  Similarly, General Municipal Law §3-a merely sets the maximum rate at which interest may be charged upon judgments or accrued claims against a municipal corporation under appropriate circumstances; it does not authorize or require the imposition of such interest (see Jewish Bd. of Family & Children's Serv., Inc. v. Shaffer, et al., 80 AD2d 614).

In accordance with the Court of Appeals’ decision affirming the order of the Appellate Division, therefore, DOE is ordered to remit payment to Success Academy NYC in the amount of seven hundred and twenty thousand dollars ($720,000).

To the extent that Success Academy NYC seeks an opinion on any potential, future arrangement between it and DOE regarding  SUFDPK programs, such request is denied.  As ordered by the Appellate Division and affirmed by the Court of Appeals, the sole issue for reconsideration is petitioners’ application for funding.  To the extent petitioners attempt to introduce arguments not directly relevant to this issue, I have not considered them.  Moreover, it is well-settled that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent remit payment to Success Academy NYC in the amount of seven hundred and twenty thousand dollars ($720,000).

*The following individuals were also listed as petitioners in the original appeal: Susana Taveras, individually and on behalf of her son, K.R.R., Jesus Hernandez, individually and on behalf of his daughter, L.N.H., Tsuri Benhorin, individually and on behalf of his son, L.B., Slawomir Brzozowski, individually and on behalf of his son, G.B., Pierre Delsoin, individually and on behalf of his daughter, E.C.D.P., Said Dib, individually and on behalf of his son, S.R.D., Fatoumata Haidara, individually and on behalf of her daughter, A.H., Alimatou Kaba, individually and on behalf of her daughter, T.C., Ebony Langhorne, individually and on behalf of her son, M.C., Joseph Luders, individually and on behalf of his daughter, R.L., Jackie Martineau-Ngoyi, individually and on behalf of her daughter, L.A.T., Ana Minaya, individually and on behalf of her daughter, A.W., Beverly Persad, individually and on behalf of her daughter, R.P., Lovely Pierre, individually and on behalf of her son, N.P., Nicholson Pierre, individually and on behalf of his son, N.P., Sarah Polanco, individually and on behalf of her daughter, A.C., Milagros Rodriguez, individually and on behalf of her daughter S.R., Nerita Sewell, individually and on behalf of her son, S.S., Michael Toney, individually and on behalf of his daughter, A.T., Richard Vargas, individually and on behalf of his son, D.B.V., Jamie Viera, individually and on behalf of her daughter, R.V., Nicole Wilson, individually and on behalf of her daughter, A.D., Rhodesha Wise, individually and on behalf of her son, A.C., and Success Academy Charter Schools – NYC on behalf of Success Academy Charter School – Harlem 1, Success Academy Charter School – Cobble Hill, and Success Academy  Charter School – Williamsburg.  During the pendency of the litigation regarding this matter, numerous individual petitioners withdrew.  Thus, any reference to “petitioners” herein shall refer to the remaining petitioners who did not withdraw from the litigation related to this matter.