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Decision No. 13,475

Appeal of STUYVESANT HIGH SCHOOL PARENTS ASSOCIATION, ARLENE NICHOLS, individually and as president of Stuyvesant High School Parents Association, and JEFFREY NICHOLS, individually and on behalf of all others similarly situated, from action of Ramon Cortines, Chancellor of the City School District of the City of New York, the Board of Education of the City School District of the City of New York and Battery Park City Authority relating to use of school property.

Decision No.13,475

(August 29, 1995)

Lansner & Kubitschek, Esqs., attorneys for petitioners, Carolyn A. Kubitschek, Esq., of counsel

Hon. Paul A. Crotty, Esq., Corporation Counsel, attorney for respondents, Marilyn Richter and Guy Cohen, Esqs., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal respondents' actions concerning the use of certain civic and recreational facilities at Stuyvesant High School. The appeal must be dismissed.

In November 1987, the Board of Education of the City School District of the City of New York ("board") entered into a lease with Battery Park City Authority ("BPCA"), as landlord, regarding the use and occupancy of a new Stuyvesant High School to be built in Battery Park City. Under the lease, the board agreed to pay BPCA the nominal rent of $1 per year.

The lease includes a provision concerning the use of civic and community facilities. Section 25.02 of the lease provides:

The School shall contain at least two gymnasiums, a swimming pool, an auditorium and public locker space with changing rooms (the "Community Facilities") which shall be made available by Tenant to the public as provided in this Section 25.02. The Community Facilities shall be open to the public between the hours of 7:00 p.m. and 10:00 p.m. Monday through Friday and for not less than eight (8) hours on each Saturday and Sunday. At Landlord's option, Landlord shall coordinate the manner in which the Community Facilities are used by community groups and individuals and shall be responsible for programming and scheduling activities to be conducted in the Community Facilities. Tenant shall operate and maintain the Community Facilities for the benefit of the public. Tenant shall pay for, and shall not levy any charges or fees in connection with, the maintenance, operation and use of the Community Facilities, except that Tenant may require that a reasonable charge for security and supervision be paid by users of the Community Facilities. Landlord may, at its option, pay for, or coordinate the payment of, such charges.

The new Stuyvesant High School opened in September 1992. Shortly after, a dispute arose between the board and BPCA regarding the proper interpretation of '25.02. In August 1993, BPCA brought an action for specific performance of the lease in the Supreme Court of the State of New York, County of New York. In the action, BPCA requested an order requiring the board to provide BPCA absolute access to the school's gymnasiums, swimming pool, auditorium and locker space on weeknights from 7:00 p.m. to 10:00 p.m. and on weekends from 11:00 a.m. to 7:00 p.m. In addition, BPCA asked the court to declare that '25.02 permits BPCA to determine how these facilities are to be used and by whom. BPCA also requested a preliminary injunction ordering the board to provide BPCA access to the community facilities during the pendency of the litigation.

In the litigation, the board opposed BPCA's requests arguing that the board should not be required to make school facilities available to BPCA at any time when students need them for legitimate school-related activities, and that use of the facilities by third parties should conform with the mandates of Education Law '414 and meet with board standards regarding public health and safety. In addition, the board counterclaimed, requesting a judgment that BPCA's plan to use the community facilities as a private health club exceeds the scope of '25.02.

On August 23, 1993, the Supreme Court granted part of BPCA's requested relief. Specifically, the court temporarily restrained the board from denying access to BPCA of the civic and recreational facilities in Stuyvesant High School. The court, however, imposed certain restrictions on BPCA:

[BPCA] in addition to what their responsibilities are under the lease terms, shall only have use of the facilities on weekdays from 7:00 p.m. to 10:00 p.m. and on weekends from 2:00 p.m. to 8:00 p.m. Further, the use of the auditorium be as follows: Mondays and Thursdays, from 7:00 p.m. to 10:00 p.m., providing that the school has no scheduled events; and on weekends from 2:00 p.m. to 10:00 p.m. Further, plaintiffs shall be afforded an extra half an hour as setup time, before the scheduled hour. Further, plaintiffs shall increase their liability insurance policy to five million dollars and shall add defendants as additional insureds. Further, should there be a school event scheduled for anytime when the plaintiffs have use of the facilities, defendants are directed to give plaintiffs seven days notice and plaintiffs shall permit use of the facility in which the school scheduled event will take place in.

The board has fully complied with the Supreme Court's preliminary injunction which remains in effect. The action in Supreme Court is still pending.

In spite of the board's counterclaim, in January 1994, BPCA began charging a fee for the use of the facilities as a health club. Under this arrangement, only fee-paying members of the community may use the facilities.

Petitioners commenced this appeal on January 28, 1994 and requested a stay prohibiting BPCA from operating a health club at Stuyvesant High School and from restricting access to students. On February 11, 1994, Commissioner Sobol denied their request.

Petitioners contend that respondents violated Education Law '414 by entering into the lease. Petitioners further contend that BPCA's refusal to obtain a permit for the use of Stuyvesant High School violates the New York State Constitution, Education Law '414 and the regulations of the Commissioner and the board. In addition, petitioners allege that BPCA's establishment of a private health club at Stuyvesant High School violates Article VIII '1 of the New York State Constitution.

Respondents maintain that the appeal should be dismissed because the issues raised in this appeal are being litigated in another forum. Respondents also maintain that the appeal is untimely. In addition, respondents contend that they have fully complied with the law.

As a threshold matter, the petition must be dismissed because there is an action pending in the Supreme Court of the State of New York, New York County, between the board and BPCA concerning the interpretation of the lease. It is well settled that the Commissioner of Education will not entertain an appeal where it appears that the issue in controversy is simultaneously being litigated in another forum (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 104; Application of Nevergold, et al., 29 id. 264; Appeal of Burrell, et al., 21 id. 649; Matter of Grossman, 15 id. 518; Appeal of Rainsford, 12 id. 49). It is apparent from the record that the petition in this appeal in most respects substantially duplicates the pending Supreme Court action. Both actions relate to the same set of facts and concern BPCA's rights under '25.02 of the lease. The issue of whether BPCA may have unlimited use of the facilities after school hours has clearly been raised in the Supreme Court action. Although petitioners do seek a slightly different remedy than respondents, both parties have asserted that '25.02 must be read in conjunction with Education Law '414. Moreover, both parties seek a judgment requiring any party who uses Stuyvesant High School to obtain a permit from the board.

In addition, the record indicates that the issue of whether or not BPCA may operate a private health club on the premises has also been raised in the pending Supreme Court action. In fact, in the pending action, the board has requested judgment declaring that BPCA's plan to use the community facilities for the operation of a private membership health club violates the intent of '25.02 of the lease that the facilities be made available to the public.

Furthermore, the record shows that the Supreme Court has already issued a preliminary injunction which governs the use of the facilities by BPCA pending the court's final decision. I find that it would not be in the best interests of the orderly administration of justice to have two tribunals making determinations based on the same factual situation (Appeal of Burrell, supra; Matter of Rainsford, supra; Matter of Istock, et al., 12 Ed Dept Rep 3). Therefore, I am constrained to dismiss this matter.

In view of the foregoing disposition, I will not address respondents' remaining procedural objections or the merits of petitioners' appeal.