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BONNIE PICCIRILLO - OFFICIAL COURT REPORTER
2 SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK: TRIAL TERM PART 12
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4 LISA STEGLICH, individually and as parent andnatural guardian of ALEXANDER HERLIHY, infant,
5 RIC CHERWIN, individually and as parent andnatural guardian of MARLEY CHERWIN, infant,
6 CAROL BARKER, individually and as parent andnatural guardian of OMARI BROWN, infant,
7 GINA DEMETRIUS, individually and as parent andnatural guardian of SEBASTIAN DEMETRIUS,
8 KIMBERLY JARNOT, individually and as parent andnatural guardian of MARGARET THOMAS, infant,
9 NYDIA JORDAN, individually and as parent andnatural guardian of HARRY D. JORDAN, infant,
10 KAVERY KAUL, individually and as parent andnatural guardian of ASHOK KAUL, infant, RUBEN
11 and GERLADINE LOPEZ, individually and as parentsand natural guardians of SHANE LOPEZ, infant,
12 MADELINE OLMEDA, individually and as parent andnatural guardian of CRISTINA JULLIA CRUZ, infant,
13 LAZARA QUINONES, individually and as parentand natural guardian of DORIS ALCANTARA, infant,
14 and MARILYNN SARJEANT, individually and as parentand natural guardian of ALIYA CLUNIE, infant.
15
Petitioners,16 INDEX NO.
104300/11against -17
THE BOARD OF EDUCATION OF THE CITY SCHOOL18 DISTRICT OF THE CITY OF NEW YORK a/k/a THE
PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT19 OF EDUCATION OF THE CITY OF NEW YORK, and
DENNIS M. WALCOTT, as Chancellor-Designate20 of the City School District of the City of
New York,21
Respondents,22
- and -23
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Appearances - continued
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3 UPPER WEST SUCCESS ACADEMY CHARTER SCHOOLa/k/a SUCCESS ACADEMY CHARTER SCHOOL,
4 MATTHEW MOREY, individually and as parent andnatural guardian of infants THOMAS MOREY and
5 CLAIRE MOREY, MARTIN AARES, individually andas parent and natural guardian of infant
6 SABINE BALOU-AARES, GABRIEL BAEZ, individuallyand as parent and natural guardian of infant
7 CHRISTOPHER BAEZ, LISBETH DELOSSANTOS,individually and as parent and natural guardian
8 of MIYAH MUZO, ELANA KILKENNY, individually andas parent and natural guardian of infant,
9 LIAM KILKENNY, ELISSA KLEIN, individually and asparent and natural guardian of AVA KLEIN, REBECCA
10 KUHAR, individually and as parent and naturalguardian of infant ROBERT MAXWELL KUHAR, LATISHA
11 SINGLETARY, individually and as parent and naturalguardian of infanct RANIYA GARRETT-WELLS, MICHAEL
12 SUCHANEK, individually and as parent and naturalguardian of infants SALLY SUCHANEK and AMELIA
13 SUCHANEK, and DAVID TURNOFF, individually andas parent and natural guardian of infant
14 HUNTER KIM-TURNOFF,
15 Intervenor-Respondents.
16 - - - - - - - - - - - - - - - - - - - - - X
60 Centre StreetNew York, New YorkJune 2, 2011PROCEEDINGS
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BEFORE:20
HONORABLE PAUL G. FEINMAN,21 Justice
22 APPEARANCES:
23 PHILLIPS NIZER LLPAttorneys for the Petitioners666 Fifth AvenueNew York, New York 10103-0084BY: MARC ANDREW LANDIS, ESQ.
JON SCHUYLER BROOKS, ESQ., (via telephone)
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BONNIE PICCIRILLO - OFFICIAL COURT REPORTER
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2 NEW YORK CITY LAW DEPARTMENTAttorneys for the Respondents
3 City of New York Department of EducationPanel for Educational Policy, Chancellor Walcott
4 OFFICE OF THE CORPORATION COUNSEL100 Church Street
5 New York, New York 10007-2001BY: CHLARENS ORSLAND, ESQ.
6 Assistant Corporation Counsel-and-
7 EMILY SWEET, ESQ.Assistant Corporation Counsel
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9 ARNOLD & PORTER LLP
Attorneys for Intervenor Respondents10 Upper West Success Academy Charter Schooland Parents and Children
11 399 Park AvenueNew York, New York 10022-4690
12 BY: EMILY KIM, ESQ.MARY E. SYLVESTER, ESQ.
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22Bonnie Piccirillo
Official Court Reporter
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THE COURT: You're on speaker phone. Just hold
on a second. We're still setting up. I just wanted to
put you on right away.
All right, first things first. The case was
transferred to my part after recusal by Justice Edmead,
and let me just review with you -- I don't know why you
have the whole world here because in many respects, it's
a lot of housekeeping, but, so be it.
What came to me are, essentially, four motion
jackets: The original Article 78 proceeding, which is
completely submitted as far as I could tell, and that's
what I wanted to, first of all, verify. In other words,
I have everything on the actual petition because I have
an answer. The City, unusually, did not move to dismiss,
but rather just filed an answer. So, in other words,
it's a complete set of papers and can be determined.
Is there anybody who disagrees as to that?
MR. LANDIS: Your Honor, there is a possibility
of an amended petition in this matter, since additional
facts have come to light.
THE COURT: Well, are you withdrawing this
petition? Are you adjourning it or you want it restored
MR. LANDIS: No, we would anticipate seeking
leave to amend. We discovered a sixth high school that
was not referenced in the original petition. We have no
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made an application for leave to amend at this point,
since there are other factors and considerations in play
MS. KIM: Your Honor, my name is Emily Kim.
THE COURT: You have to speak a lot louder.
Why don't we do this, because I'm concerned
that Mr. Brooks will be able to hear everyone. There is
a microphone. If we can set it up with the lectern, it
will make it a lot easier.
MR. BROOKS: I appreciate your concern, your
Honor, and I apologize for my inability to be there in
person. I thank opposing counsel for their consent for
me to appear this way. I, unfortunately, am on route to
a funeral.
THE COURT: I'm sorry to hear that.
All right, okay, I was just trying to find out
whether I have everything that I need, papers-wise on th
actual petition. And, Ms. Kim did you say?
MS. KIM: Yes, Emily Kim, for
intervenor-respondents. We petitioned to intervene in
this action and our petition was granted, and we actuall
did move to dismiss and you should have our papers.
THE COURT: I understand that. That's a
separate issue.
All right, the City who's actually the
respondent, did not. I'm going to get to that, and
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thatls a separate issue. The City took no position in
terms of moving to dismiss. They answered.
MS. SWEET: I wanted to make sure -- Emily
Sweet, your Honor. I just wanted to make sure that the
respondentls memo of law was there, because it was
e-filed and it might not have been e-filed correctly.
THE COURT: Thatls a separate issue. What 11m
going to do at the end of the day when welre done with
the session is give you all of these files and make sure
we have -- because you gave us on some things I have
twice. I only deal with originals. I donlt need
courtesy copies; and typically, 1 1 m pure e-filing with
paper; but because of the nature of the case, a lot of
different people are going to be handling the file. Itl
just easy I mean, for example, when I was reading thi
at home last night, those are duplicates. Anything
thatls being put on the desk now are duplicate.
Whoever provided them can take them back with
them or recycle them as they see fit.
peoplels papers.
But, I do want to have one hard copy, one hard
copy of everything, and 11m going to do that at the end
Itls different
of the session. 1111 put the files there, and you can
look through them and make sure we actually have hard
copy. I personally read everything online.
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All right, so that's sequence 1.
Then sequence 2 is, in fact, the motion to
dismiss that you were referencing.
MS. KIM: Correct.
THE COURT: Is that wholly submitted at this
point?
MS. KIM: Yes, your Honor.
MR. BROOKS: That's a good question. At the
time the motion to dismiss was made, Ms. Kim's clients
were merely proposed intervenors. We filed our
opposition to the motion based on the procedural
deficiencies occurring in the motion, given the timing
and the manner in which it was made. As Ms. Kim
correctly points out in her reply, because of that we di
not submit an opposition that addresses the merits of th
motion to dismiss.
Now that Justice Edmead granted the motion to
intervene, we assume the Court will now entertain the
motion to dismiss on the merits.
THE COURT: Absolutely.
MR. BROOKS: On the procedural defects in it,
and we would like an opportunity to submit an opposition
on the merits.
MS. KIM: Your Honor, petitioners had plenty --
ample opportunity to respond to our motion to dismiss.
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BONNIE PICCIRILLO - OFFICIAL COURT REPORTER
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They did submit opposing papers, opposition papers. Thi
is the first we've heard that they do not consider those
opposition papers to be their brief response and we did
submit reply papers, as well.
THE COURT: And what is the harm to you?
MS. KIM: Well, we submitted reply papers based
on their opposition
THE COURT: Obviously, they raise a new issue
in their opposition papers that are addressed to the
merits of your motion to dismiss as opposed to the
procedural aspect. You can reply to that. I'm not goin'
to not allow you to reply to that.
MS. KIM: We can reply, but the reason why --
THE COURT: Mr. Brooks, it's not your turn.
Mr. Brooks, it's not your turn. Ms. Kim was speaking.
MR. BROOKS: I'm sorry, your Honor. I didn't
hear anything.
THE COURT: All right, I'm sorry. I know it's
a little complicated, but just bear with me because it's
very hard for the court reporter to actually get you dow
over the phone, and she's trying; but it's really
important that only one person speak at a time.
MR. BROOKS: Understood, your Honor. My
apologies.
THE COURT: All right.
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BONNIE PICCIRILLO- OFFICIAL COURT REPORTER
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MS. KIM: Under Article 78, we are permitted as
intervenors to either answer or move to dismiss. We
moved to dismiss, and we did so within the same timing 0
the existing briefing schedule in order to
THE COURT: 11m not interested you know, I
understand the procedure. All right, what 11m intereste.
in hearing is what everybody has to say about the merits
about the case, ultimately.
And so what is the prejudice of allowing them
to answer -- 11m not asking you about the procedure. Th
same way Judge Edmead didnlt kick out your motion on
procedure. Letls get to the substance.
What is the prejudice to allowing them to
oppose your motion to dismiss on its merits and then
allowing you to reply on the merits?
MS. KIM: Well, your Honor, the prejudice is
delay, and petitioners have from the beginning been
engaged in delay --
THE COURT: Well, except that it may well that
that petition is actually decided before I decide your
motion to dismiss. In other words, these things donlt
necessarily all have to be decided together. Thatls why
I asked the first question, do I have a full set of
papers on the petition; and everybody said yes.
And now I turn to your motion to dismiss. Of
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course, if I've already decided the petition, I don't
need -- motion to dismiss will be granted academic.
We'll see where it goes.
MS. KIM: Well, we view that your decision on
the first set of papers, actually, some of the issues ar
the same.
THE COURT: It may be.
MS. KIM: So to decide the first set of papers
without benefit of our argument, we feel that we would b
prejudiced in that regard.
THE COURT: See where it goes. I don't know.
So the question is, how long do you need to put
in your opposition on the merits, Mr. Brooks; and how
long do you need to reply, Ms. Kim? My inclination is t
give you each a week to do that.
MR. BROOKS: That would be sufficient for us,
your Honor.
THE COURT: All right, so one week and
one week.
All right, so that is on motion sequence 02,
which is not fully submitted then.
Then we turn to -- I'm not really clear what is
motion sequence 04. It looks like 03 was resolved. Tha
was the actual motion to intervene.
for vice curiae status.
04 is a motion to -
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Has that been resolved by Justice Edmead or
not?
MS. KIM: Yes, your Honor.
MR. BROOKS: Yes, that was granted, your Honor.
THE COURT: I'm a little confused as to why
then --
MR. BROOKS: Motion sequence 3 and motion
sequence 4 have both been determined.
THE COURT: Yeah, I'm not sure why then I got
back the jacket on 04? I see that she wrote a short-for
order for 3 and 4.
Is there anything in the papers in 04 that
affects the merits of -- because she wrote an interim
order. I'm not really sure why she did that. We'll hay
to figure that out.
Okay, now we turn, also, to the TRO motion and
the preliminary injunction motion.
Is that yet a complete set of papers? We're
still just doing housekeeping.
MR. BROOKS: Your Honor, there has been no
formal briefing schedule for a return date established
for the PI motion. With that said --
THE COURT: Well, what's interesting to me is I
don't even find a signed order to show cause in the file
There's no executed OSC, and so I didn't know whether
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that was an oversight by whoever put the papers in the
jacket that was sent to me, or was it actually sort of
deemed academic by the discussion that you had with Judg
Edmead on the record, which I've seen. So that's one of
the concerns that I have. I don't actually see a signed
order.
MR. BROOKS: Your Honor is correct, there was
no signed OSC. I believe that the mere near two-hour
oral argument that took place in front of Justice Edmead
and what she termed an interim order was in lieu of a
formal OSC.
THE COURT: And then -- so there was no
discussion about service, return dates, et cetera on the
TRO? Actually, the TRO and the PI when you were going t
have to have a briefing -- that's what, you know, I was
looking for and I didn't see in there.
MR. BROOKS: That is correct, your Honor.
There was no statement about the briefing schedule on th
PI. The service issue became moot because of the fact
that the TRO was actually heard and argued on the record
And, therefore --
THE COURT: I don't know how that's moot,
frankly. I don't necessarily agree with that. The TRO
is what you always argue when you come in to get the OSC
signed, which then directs the method of service and
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directs the schedule; but, all right. We can cure that.
MS. KIM: Your Honor, after Justice Edmead
issued her interim decision on the temporary restraining
order, she invited the parties or permitted the parties
to submit briefing on the TRO issue. So she did not
she was not yet at the preliminary injunction stage.
So, after the oral argument we submitted
opposition papers to the TRO, as did Department of
Education.
THE COURT: My question then is can we deem the
file complete as to the preliminary injunction, and are
you waiving the necessity for further service of papers?
MR. BROOKS: Well, again, your Honor, to the
extent that the supplemental papers filed on May 19th
with respect to the TRO by DOE and the intervenors goes
beyond the issue of the TRO itself and addresses the PI
motion, I would suggest that there has been an oppositio
to the PI motion. But, as pointed out in our May 26th
filing, we have not had a reply on the PI motion; and if
the Court grants us one, I imagine could do that in the
same week's time to stay with the schedule on the motion
to dismiss.
MS. KIM: Your Honor, we believe the motion is
fully submitted. I believe I'm speaking on behalf --
MS. SWEET: Yes, DOE is fine with having that
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Before we go any further, now that I
understand, if you had a chance to reply on the TRO, my
sense is that there's really not much difference between
the TRO and the PI issue. Therefore, I don't see the
necessity for further papers on that. You had a chance
to reply. Enough. And let's get it submitted.
Before I go any further, I need to just make
one disclosure in reference to this case in which, of
course, is something that I'm sure you heard before,
which is that, obviously, Mr. Landis and I think
Mr. Victor have appeared as part of the pro bono counsel
on behalf of the petitioners.
Obviously, I know Mr. Victor from when he was a
JSC in the Bronx through judicial association. I know
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deemed as the PI papers, but they did submit a reply
affirmation with exhibits in opposition to our papers, s
I would think that that should be deemed a reply.
THE COURT: All right, I'm going to sign an
OSC. I just don't quite understand procedurally why tha
didn't happen. I think it's, frankly, an oversight in
all of the appearances back when you were in front of
Judge Edmead on the record. I do just think that that's
just an oversight to how she formally signed and execute-
the OSC.
him. It's not like I have any social or personal
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relationship other than having had been former
colleagues. That's going to be true of every single
justice in the city. Okay, so that's that.
As for Mr. Landis, I know Mr. Landis through
his position as a democratic district leader here in
Manhattan. When I ran for Supreme Court back in 2007, h
was one of the district leaders who was supportive of
that effort.
I don't have a social relationship with Mr.
I know him only through judicial politics.andis.
That's four years ago. And you know, from time to time,
I think the last time I saw him was at somebody's that w
mutually know shiva call, paying a shiva call to
somebody; but I don't have any independent social
relationship with Mr. Landis. But I tell that you so
that it comes as no surprise.
It's probably true of every justice in the
courthouse who is an elected -- it is true of every
elected justice in the courthouse which is, basically,
99 percent of them will know Mr. Landis in his capacity
as a democratic district leader.
What changes is the timeframe and the two-year
bar under the Ethics rules. So, to me it's four years
since the action; and so at this point I have no
interaction with him because I'm no longer running for
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anything until 2021.
So, I make that disclosure to you. Obviously,
if I didn't feel I could be fair and impartial, I would
just recuse myself when the case came in; but that's jus
information that I feel has to be put on the record up
front so there's no question later on that it hasn't bee'
disclosed.
And if you feel it necessary to make whatever
appropriate application, I'll consider it; but that's
where we're at on that issue.
So, what I wanted to discuss today because one
issue that was not raised in the preliminary injunction
motion papers, as far as I could see, was the issue of -
because as far as I'm concerned, this should be decided
not just in the context of whether there should be a
continuing TRO, which is always the case at any
appearance. You know, a TRO can be vacated at any time.
But whether -- if the Court were to grant the preliminar
injunction, there needs to be a bond or undertaking as
required by the statute and what that might be, that's
one issue I wanted to address.
Whether I should continue the TRO for the
reasons stated by Justice Edmead which is, as I
understand it, is limited to the first floor, not the
second floor, where construction was permitted by
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agreement to move forward. And then the other issue in
terms of what is immediate has to do with, I want to
understand fully what you believe is the latest date you
could start construction without having to put off the
start date, I believe, of August 1st is mentioned for
teachers coming back into the school, in the Charter
School?
MS. KIM: August 2nd, your Honor.
THE COURT: I'm sorry?
MS. KIM: August 2nd.
THE COURT: August 2nd, okay.
So what do you believe is the latest start date
for construction to allow that?
Obviously, the issue of moving the chairs about
is not the problem. The problem is actual physical
construction and asbestos abatement.
MR. ORSLAND: May I, your Honor? Chlarens
Orsland, your Honor, attorney for the City, also.
There's actually been a new development, which
I think should go to the top of that list. We advised
petitioners' counsel yesterday by letter, a copy for the
Court, that we are not going forward with the
construction pursuant to the challenged vote.
THE COURT: Pursuant to the what?
MR. ORSLAND: Pursuant to the challenged vote.
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The determination was made in early February by virtue
the vote by the Panel for Educational Policy, PEP, that
is the challenged determination.
In essence, the petitioners have alleged that
there were infirmities in the documents that led up to
that, particularly the Educational Impact Statement and
Building Utilization Plan. The Department has just
decided that well redo this process.
THE COURT: Doesn't that render this whole 78
moot?
MR. ORSLAND: I have asked petitioners to wait
on this by this letter I sent them yesterday, and I awai
their reply. That is, in fact, our position.
THE COURT: Mr. Brooks, did you hear that?
Mr. Brooks? Mr. Brooks?
MR. BROOKS: Yes, your Honor, I did not -- I
believe it was Mr. Orsland speaking?
THE COURT: Yes. And, basically, apparently,
they have sent you a letter saying that they have decide-
to, I guess, do-over of the whole process seeking to
render the whole Article 78 moot.
MR. BROOKS: We believe it does not render the
Article 78 moot.
THE COURT: Why not, if they're not proceeding
on that?
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MR. BROOKS: We are aware from a letter
received yesterday of the possibility --
THE COURT: You know, itls sort of like when
are you there, I donlt know? With DHCR challenges,
theylre, basically, saying take back Article 78 and weIr
going to go back to the drawing board and start over.
MR. BROOKS: If your Honor can hear me?
THE COURT: Yes.
MR. BROOKS: Our understanding is that they are
proposing to revise the Educational Impact Statement and
perhaps the Building Utilization Plan to correct or at
least address the issues raised in the Article 78.
We have not seen that proposed revision, but we
understand from a letter received yesterday that they ar
proposing to have a hearing on this later in June, and I
believe a consideration by PEP on June 27th.
THE COURT: Right. But the issue is, if youlre
going back and youlre holding new hearings, youlre
basically changing the record that is under
consideration, and youlre changing the ultimate
determination thatls under consideration.
So itls no longer the same -- and, obviously,
it moots any issue of timeliness, tOOj because you get a
new time to challenge because itls no longer a final
determination.
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MR. BROOKS: I have one possible outcome, your
Honor, if in fact PEP approves the proposed provision to
the EIS, if the --
THE COURT: Hold on a second. You're assuming
the court reporter is able to get all of your acronyms.
So, P-E-P, and E-I-S, Educational Impact Statement.
Yes, sir, go on.
MR. BROOKS: If, if the respondents are now
representing to the Court that regardless of the outcome
of the PEP vote at the end of June they're going to stan
down on the current EIS, that would likely render this
Article 78 moot. I'm not sure that it would render the
TRO moot, because there is still the possibility --
THE COURT: Well, the problem with the TRO,
though, if you have no Article 78, you have to bring som
sort of a separate action for preliminary injunction, I
suppose, or some sort of declaration or something. The
TRO and the PI have to be tied to some complaint or some
proceeding.
MR. BROOKS: That raises an interesting
question, your Honor, because the respondents and the
intervenors have taken the position that the State
Educational Department has exclusive jurisdiction over
most of the issues raised --
THE COURT: Right, and I thought that at some
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point you all agreed to go back to the Commissioner on
some sort of expedited appeal, but that was something I
was going to bring up later and then I don't know who,
somebody backed out of the deal.
But, counsel for the DOE wants to say
something.
MS. SWEET: I just wanted to clarify that that
is, indeed, the case what Mr. Brooks was saying. That
regardless of the outcome of the new PEP vote, we would
not take any action pursuant to the prior PEP vote. So
it's not as if we're revising the EIS above; and then if
the PEP were to not approve the new EIS, we would then
take action on the prior one. And I wanted to make that
clear for the record, because that was in our letter
yesterday and that was our concern.
THE COURT: All right, did you hear that? Did
you hear that, Mr. Brooks? I think we've lost
Mr. Brooks. He's no longer on the line.
MR. ORSLAND: We have Mr. Landis.
THE COURT: I'm sure he'll dial in, again.
(Whereupon, the telephone rang in open court.)
THE COURT: Hello? You're back?
Do you want to have a further discussion about
whether this whole thing has been rendered or will be
rendered academic and then come back and see me at that
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point?
My intention, frankly, is to continue the TRO
while these matters are under submission. What I was
trying is to get you on a tight schedule so I can get th
whole thing decided. Obviously, I have no interest in
putting aside my 900 other cases actually, it's
only -- I think welre probably down to under 700, but
putting them aside to move this to the front burner,
including other Article 78s with TROs in effect. I have
no interest in doing that if this whole thing is going t
be rendered academic.
So I really need to have you either come to a
mutual agreement on that, or just say, Judge, we want yo
to decide whether it's academic or moot, whatever term
you want to use; but, you know, clearly, that needs to b ..
resolved upfront. Nothing annoys the Judge more than
spending two to three weeks working on something, and
then have the parties say it's no longer necessary.
MR. ORSLAND: That's precisely why we brought
it here this morning, Judge. 11m happy to talk further
with counsel. I don't know what else I can tell him
other than what live already told him. I can submit an
affirmation from someone from The Department of Educatio
if the Court desires; but as welre not going forward, II
happy to report back next week and talk further. It's
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however Mr. Brooks wants to proceed at this point.
THE COURT: Mr. Brooks, are you in next week?
He's not hearing me. Mr. Brooks, are you in next week?
MR. BROOKS: Are you asking me?
THE COURT: Yes.
MR. BROOKS: Yes, I am in next week. That is
not a problem.
THE COURT: All right, so what if I give you
until Monday to report back as to whether or not you nee
me to decide whether this is moot or academic? In other
words, and how you want to move forward procedurally?
MR. BROOKS: That's fine, your Honor. As I was
saying and I apologize, I think my call was dropped.
THE COURT: Yeah, don't worry about that.
MR. BROOKS: As I was saying, if the Court is,
in fact, inclined to maintain the TRO and that remains i
effect following the consideration by PEP of the newly
revised Educational Impact Statement, that would, I
believe, be sufficient for us.
Our concern is that if the respondents are now
abandoning the initial EIS and the PEP that approved it
and are going to rest exclusively on the revised EIS,
that we not find ourselves needing to come back to Court
to request a new TRO to prevent the commencement --
THE COURT: Well, that's going to require their
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consent to proceed that way. Because, obviously, once a
proceeding is withdrawn or dismissed or whatever, or
discontinued, therels nothing to tie the TRO to. Nothin
stops them from agreeing to voluntarily restrain with a
certain time limit, obviously, on it from proceeding
construction on that first floor. You can tie it to a
timeframe, essentially, to what would be a new 78, it
would have to be filed with the determination.
And I think the point that Mr. Brooks is making
is you canlt do an end run around the TRO and this
litigation by, in essence, saying all right, youlre
right, weIll go back and get the new statement and weIll
start over and at that point the Court will be presented
with an Article 78 challenging a situation where therels
already facts on the ground, ie., construction finished
and Charter School in place on the first and second
floor.
I think that is the concern, and itls a
legitimate concern.
MR. BROOKS: Thank you, your Honor.
exactly correct.
MS. KIM: Your Honor, if I may be heard?
THE COURT: Yes.
Thatls
MS. KIM: We would underscore -- we would agree
that this revision process would moot out this action.
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We would not consent to the continuation of the TRO with
the recognition of what your Honor just stated, which is
that the DOE
THE COURT: Yeah, except you don't really have
standing on the issue of construction, because you're no
the ones doing the construction, as I understand it.
It's the DOE, isn't it?
MS. KIM: Right, but we object to the --
THE COURT: That's very nice. You don't have
standing on the issue of the TRO in the sense of it's th
PEP or the DOE or the Board of Ed, whatever Board,
whatever the entity is -- next year will probably have a
new name -- but they're the ones that are doing the
construction.
I mean, you have been granted to intervene in
terms of the 78, I understand that. But once the 78 goe
away, it's between DOE and the petitioners whether to
continue to, you know, hold off on the construction.
MS. KIM: Well, your Honor, I would
respectfully disagree. We are intervenors. We have bee'
granted intervenors status and we are parties for all
purposes.
THE COURT: You have no status once the action
is gone.
MS. KIM: We would submit to your Honor that
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the colocation of the school. The school has gone ahead
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the TRO, as yourself suggested, does not continue --
THE COURT: Let me ask you something, Ms. Kim.
Let's say this proceeding goes away by discontinuing, an
for whatever reason DOE doesn't do the construction.
Then what?
MS. KIM: I'm sorry, I don't quite understand.
THE COURT: This action goes away and DOE
doesn't do the construction because they either
voluntarily agree with the petitioners or, whatever; the,
have a fight with their contractors who don't want to
come in and do the construction. What you have is
whatever remedies you may have under your -- any
contractual agreements that you have with DOE, right?
MS. KIM: Right, we have no contractual
agreement the DOE.
THE COURT: Exactly, so you have no standing if
DOE privately agrees so-to-speak with the petitioners to
not move forward on the construction until --
MS. KIM: Your Honor, we have standing by
virtue of the fact that on February 1st, the PEP approve
and admitted students, and parents and children are
deciding where to send their children --
THE COURT: What I would suggest to you is
let's say, whatever reasons there's a delay. Whatever
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remedies you would have if there's a delay in opening th
school are still the remedies you have, whether they're
contractual or whatever. I'm not sure I understand how
you can say to the DOE don't enter into an agreement wit
the petitioners to hold off on construction two weeks,
three weeks, whatever it is going to take.
MS. KIM: That's not my position that the DOE
could not independently enter into a separate agreement.
THE COURT: That's not what I'm suggesting.
MS. KIM: But the question I think is what I'm
addressing is whether or not your Honor should continue
the TRO that's in place with respect to this Article 78.
THE COURT: I've moved beyond that, all right.
I've moved to -- we rendered this proceeding moot or
academic, whatever term you want, and that there's a
voluntary agreement between DOE and the petitioners for
period of time not yet determined, because we haven't
gotten to that stage, to not move forward with
construction on the first floor.
MS. KIM: Okay, we have no objection there,
your Honor.
THE COURT: That's what I was at.
MR. ORSLAND: Judge, if Mr. Brooks is looking
for a standstill agreement, there's no reason we can't
work that out.
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THE COURT: That's what I'm suggesting, a
standstill agreement.
MR. LANDIS: Your Honor, I would add that we'll
revert back to DOE and to the Court as soon as possible.
We need to consult with the petitioners. But,
additionally, it's my understanding from speaking with
counsel that while DOE has not yet published the propose
amended EIS and amended BUP, that those documents should
be forthcoming the early part of next week and,
certainly, it will make it easier for us to get to the
nitty-gritty of what that standstill might mean once we
have an opportunity to see what those documents cover, t
see whether they have addressed most of the points that
petitioners have raised or some of the points or few of
the points.
THE COURT: Now, I have a question in case this
doesn't get worked out.
And one thing that wasn't clear to me is what
harm is it to the petitioners if the Court allows the
construction or renovation of the first floor to proceed,
if in fact it's determined that the Charter School can't
go in there? In other words, why can't then whatever
public schools remain in that building have the benefit
of those renovated spaces?
MR. LANDIS: Your Honor, you've hit on exactly
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the point that was covered in the initial TRO, where we
distinguished between the first floor work and work that
was being done that would specifically benefit the
Charter School, the Charter Schoolls needs and other wor
that was ongoing in the building that would serve the
benefit
THE COURT: Thatls the second floor. Ilm
talking about on the first floor.
MR. LANDIS: The first floor, the elimination
of the spaces on the first floor for the proposed Charte
School cafeteria would not be useful space to the other
schools if the elementary Charter School does not come
in. Therels sufficient cafeteria space thatls shared by
the high schools.
Essentially, what we would have done is taken
four rooms that serve another purpose. Currently that
purpose is the legal storage of records that have to be
maintained on site and there isnlt another designated
location in the building yet for those records. So, we
would run into the problem of having to find new spaces.
Some of the other spaces is on the first floor that woul
be renovated
THE COURT: Why couldnlt you store legal
records in a giant cafeteria?
MR. BROOKS: Your Honor, if I may, itls not
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about where the records are stored. This area is the
area where the asbestos abatement project is going to
have to be done. It was argued before I thought
resolved -- before Justice Edmead that there was grave
concern about allowing an asbestos abatement project to
take place during the school year in an area that -- in
an occupied building in an area that is immediately
adjacent to the existing cafeteria that1s used on a dail
basis.
Moreover, your Honor asked about the prejudice.
The other prejudice is what we believe and have presente
argument about is the statutory prohibition of taking
steps to implement the PEP vote that approves the
colocation prior to the end of the school year, which is
a statutory prohibition.
THE COURT: The end of the school year is
rapidly approaching. So, my point is, is if you canlt
come to an agreement to report back to me next week as t,
a voluntary standstill and, you know, some sort of
schedule about where you are going to be with your next
78, what harm -- you know, and the continuation of the
TRO and the PI, assuming I ultimately have to decide
them, and that1s why I was asking what harm there was to
the petitioners in actually allowing the renovation to
proceed?
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Because in terms of the usage of the space,
ultimately, and that's the portion of the -- I did read
the transcript of Judge Edmead, and I understand the
asbestos abatement, and I just so happen to be one of
those judges who tries asbestos cases, so believe me, I
know all about asbestos.
But my question was, assuming you get to the
end of the school year and you don't have a voluntary
standstill at that point, should the Court consider --
well, maybe at that point the equities switch back the
other way, because there's no real prejudice to the
petitioners in allowing the construction to proceed.
MR. BROOKS: Well, there is a prejudice, your
Honor. It's our understanding from prior conversations
with counsel for DOE, that the renovations that are
proposed for the first floor and for the other second
floor, as well, including classroom activity, are going
to be funded by existing allocated funds. That means an
funds that are allocated for work that proves
unnecessary, if in fact we end up with no Charter School
colocation here, our funds are not going to be made
available again to the existing six high schools for wo~
that actually needs to be done.
MR. ORSLAND: May I respond, your Honor?
THE COURT: Sure.
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MR. ORSLAND: As the Court may have discerned
from the transcript, I informed the Court all we're doin
is taking a bunch of rooms that are used to store files
and converting it into one mUlti-purpose space. It can
be used for a variety of purposes.
THE COURT: That's what generated my question.
Is what's the prejudice to the petitioners if at the end
of the day they prevail and you just now store your file
in a very nice storage room.
MR. ORSLAND: Right. We told the Court that
that this could easily be undone. At the end of the ro~
if I lose this case, it's just a matter of moving some
stuff back in and back out. The only thing new is we're
adding a sink or a counter, big deal. If I had to take
those out, I could take those out, too; but that doesn't
really affect the use. This is going to be a nice big
clean space that anyone could use for any purpose.
THE COURT: If that is the case, though, would
you then agree as part of the standstill not to do the
asbestos abatement until school is out of session?
MR. ORSLAND: As the schedule works out, that's
likely what it would be. First of all, we would not do
any work now until after the PEP vote, which is the end
of the month when school is out.
THE COURT: Mind you, when I was in 80 Centre,
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asbestos abatement was going on full-time around my
courtroom, so be it.
MR. ORSLAND: We see that allover town.
THE COURT: That doesn't mean it's safe. I
listen to a lot of testimony on this point. So, in the
course of trials and what not. So it doesn't mean it's
safe. It goes on all the time, and there is a differenc
between young bodies and fully grown adults.
MR. ORSLAND: That's certainly right for
discussion in the standstill conversation.
THE COURT: All right.
MS. SWEET: But there are no plans, and we did
represent in our letter yesterday that we would not be
doing construction until after the PEP vote, which is on
June 27th. So June 28th would be, as of now, unless we
agree to something different, June 28th the children are
out of the building. So there wouldn't be no asbestos
abatement.
THE COURT: So there would be no problem then
as part of the standstill saying there's going to be no
asbestos abatement while children are located in the
school.
MR. ORSLAND: That's an easy one to agree.
THE COURT: That's the easy part of it. Okay.
It sounds to me like you're on your way to
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working out something on a standstill and a
discontinuance of this particular proceeding. It doesn'
mean you will not be back with a new proceeding.
So, I think you need to talk to each other.
Assuming that you cannot work something out
then, I'm going to deem -- I'm going to sign the order t
show cause -- I just find that a peculiarity so I'm goin
to, I'm going to sign an OSC and I'm going to put on her
that the record is deemed fully created on this. Becaus
I'm going to deem the TRO papers to be the PI papers.
me, there's no difference in the issues, other than
whether or not there should be an undertaking, which
nobody has seemed to pick up on. Although, I asked abou
it earlier.
MR. ORSLAND: Would your Honor care to include
the letter to counsel as a Court exhibit? This is where
I made the
THE COURT: Did you -- has it been e-filed, by
the way?
MR. ORSLAND: No, it has not. I sent it to
counsel yesterday. I could certainly do that; but if
Court is closing the record, I'm not sure how you wish t
proceed?
THE COURT: I will certainly take a copy of the
letter, and I will certainly take a look at it. Please
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e-file a copy of it.
MS. KIM: Your Honor, to the extent that there
is no agreement thatls reached between DOE and
petitioners, we would reserve our right, of course, to
move to vacate the what I understand now will be a
preliminary injunction?
THE COURT: Well, no, 11m not granting the
preliminary injunction. Let me be very clear. What I a
doing is continuing the temporary restraining order as
formulated by Judge Edmead.
lIve read that transcript. I read that lengthy
decision that she did on the TRO. Itls more than one
usually gets, and itls quite thorough and it goes throug'
the balancing and all of the various considerations.
One always has the right the Court doesnlt
have to give you that right -- to move to vacate a TRO
based on changed circumstances. Or, just as a petitione
has been denied a TRO, can always ask to have a TRO
reconsidered if itls been denied.
Things change everyday.
MS. KIM: Thank you, your Honor.
THE COURT: So, where are we at, though, in
terms of, as far as, I think the only thing that really
needs further papers and thatls really one of the main
reasons I had you in here today, is to figure out where
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THE COURT: My rules are very clear. I don't
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merits of the case whether it's an empty courtroom or a
full courtroom. So it makes no difference.
MS. KIM: Your Honor, with respect to that
letter that was filed, we actually did have a letter
response, but we reviewed your rules and saw that you di
not want letters
want letters. However, there's an exception in that rul
for this kind of a letter, which goes to whether the
proceeding has been rendered academic or moot.
So, I'm going to accept this letter.
MS. KIM: To the extent that your Honor has
stated that you will be disregarding any of those types
of letters --
THE COURT: You're can assume I will disregard
any of those letters. I will always post them, because
think you should know about them. You should know what
people send the Court.
MS. KIM: Thank you, your Honor.
THE COURT: But, you know, I also know from
handling other cases that have -- whether they're press
interest or public interest, that sometimes a message c
be conveyed by counsel to the interested parties that
they may represent that this is not well-advised
the Court or call the Court or whatever, and I'm just
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should
THE COURT: All right, that's actually a good
day. Wednesday is my motion conference day, and so I'm
not going to do anything in terms of rendering any
decisions on these at least until Wednesday.
I'm not saying you would have gotten your
decision by Wednesday anyway. Long ago I learned not
make promises other than just give you a sense of where
we are in terms of the workload.
Okay, so, and if there is no agreement
Wednesday, the only motion that I expect more papers on
is that motion to dismiss one week for their opposition
and then one week after that for further reply.
Okay, so we're all on the same page.
All right, very good.
I'm not directing you to, but, it is sometimes
helpful to have a transcript. If you get the transcript}
please e-file a copy of it; because, as I said, for me,
look at everything online at this point. Again, please
e-file a copy of the letter.
All right, if there's nothing else, you're free
to go.
I'm going to give you that file to make sure I
do actually have a paper version of everything. So, I'l
let you look through the files. We're going to put them
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right on the corner of the desk there. I sorted them as
I understood them to be, and let me just finish signing
this order.
All right, the record is closed. Thank you.
CERTIFIED TO BE A TRUEAND CORRECT TRANSCRIPT
~~~
BONNIE PICCIRILLOOFFICIAL COURT REPORTER
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