transcript of court conference before justice paul g. feinman - june 2, 2011

8/6/2019 Transcript of Court Conference before Justice Paul G. Feinman - June 2, 2011

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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

3 - - - - - - - - - - - - - - - - - - - X

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.

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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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25 ( - continued on next page - )

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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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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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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

Proceedings

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

BONNIE PICCIRILLO OFFICIAL COURT REPORTER


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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

41

transcript of court conference before justice paul g. feinman - june 2, 2011

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