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Decision No. 17,287

Appeal of A STUDENT WITH A DISABILITY by his parent, ERICA LANE on behalf of her child AKYIAH MORALES, VIRGENMINA PAGAN on behalf of her child IMAEL ESCALERA, NELLY PARRALES on behalf of her child GARY PARRALES, PAMELA BYNOE on behalf of her child TREMAINE SAMUELS, and CHARLENE ST. VIL on behalf of her child KIANA SLEDGE from action of the New York City Department of Education regarding school construction.

Decision No. 17,287

(December 19, 2017)

Zachary W. Carter, Corporation Counsel, attorney for respondent New York City Department of Education, Eric B. Porter, Esq., of counsel

Deanna L. Durrett, Esq., attorney for Success Academy Charter School – Cobble Hill

ELIA, Commissioner.--Petitioners challenge construction work at New York City Department of Education’s (“DOE”) building K293 in Brooklyn, New York.  The appeal must be dismissed.

Petitioners allege that they are parents of students who, at the time the petition was filed, attended schools located in building K293.  Success Academy Charter School – Cobble Hill (“SACS – Cobble Hill”) is co-located in building K293.  It opened for instruction in the 2012-2013 school year.

According to petitioners, in July 2012, contractors for SACS – Cobble Hill, removed light fixtures containing PCBs from the basement hallway in building K293 without the knowledge or approval of DOE.  Petitioners state that they first learned of the “unauthorized and potentially hazardous demolition of PCB-containing fixtures” through published media reports dated April 25 and 26, 2013.  They allege that the light fixtures were removed “without DOE supervision or abatement” from the hallway next to the cafeteria where summer breakfast and lunch programs were held.  In addition, petitioners allege that a “PCB-containing fixture” in building K293 started smoking on May 2, 2013, and that this was reported by the media on May 3, 2013.  This appeal ensued.  Petitioners’ request for interim relief was denied.

Although not entirely clear from the petition, petitioners appear to assert that the construction work conducted in DOE’s public schools located in building K293 was not of equal value to the construction work at the portion of building K293 occupied by Success Academy – Cobble Hill in violation of Education Law §2853(3)(d).  Among other things, petitioners request an order directing DOE to comply with Education Law §2853(3)(d) and “treat traditional public schools the same as charter schools and remove PCB-containing fixtures immediately from all sections of K293 and all similarly co-located buildings.”

DOE asserts that the appeal is untimely, that petitioners lack standing to assert many of their claims, that petitioners’ claims are meritless,[1] and that petitioners do not sufficiently allege a violation of Education Law §2853.  It contends that it has not in any way violated Education Law §2853.

SACS - Cobble Hill asserts that the petition was improperly served,[2] that petitioners failed to name and join necessary parties, that the petition fails to state a clear and concise statement of petitioners’ claims, that the appeal is untimely, that petitioners lack standing, that petitioners failed to state a claim upon which relief can be granted, that the appeal is moot, and that petitioners seek relief outside the scope of the Commissioner’s power to grant.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioners appear to challenge construction work performed at building K293 in July 2012.  However, petitioners did not initiate this appeal until June 26, 2013.  In their petition, petitioners request that their delay be excused because they “learned of the problems and scope over time, through the media.”  An appeal may in some circumstances be commenced within 30 days of discovery of an alleged wrongdoing (see Appeal of J.S., 49 Ed Dept Rep 445, Decision No. 16,077; Appeal of Goldin, 43 id. 330, Decision No. 15,009; Appeal of Johnson, 38 id. 327, Decision No. 14,045).  However, while petitioners assert that they did not learn of the construction at building K293 until April 25 and 26, 2013, and that they learned of the fixture issue on May 3, 2013, they offer no excuse for their failure to commence the appeal within 30 days after they learned of those events.  Consequently, the appeal is untimely and must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.




[1] In his affirmation in opposition to petitioners’ request for a stay, DOE’s counsel indicated that DOE “plans to replace all light fixtures which potentially contain PCBs throughout the district schools and shared spaces in K293” and that the “work will be conducted in accordance with the applicable [S]tate and federal laws and regulations, including those regulations governing work which may involve the removal of PCBs or asbestos.”  He also stated that DOE intended to complete the replacement of the light fixtures prior to the commencement of the 2013-2014 school year.


[2] In her affirmation in opposition to petitioners’ application for a stay, SACS – Cobble Hill’s attorney indicated that on June 26, 2013, a package containing one notice of petition and six petitions was hand-delivered to her office.