Appeal of SUCCESS ACADEMY CHARTER SCHOOLS – NYC, on behalf of SUCCESS ACADEMY CHARTER SCHOOL – HUDSON YARDS, from action of the New York City Department of Education regarding school utilization.

Decision No. 18,614

(July 30, 2025)

Guerline Jean, Esq., attorney for petitioner

Muriel Goode-Trufant, Corporation Counsel, attorney for respondent, Mark Anthony Benavides, Esq., of counsel

ROSA., Commissioner.--Petitioner, Success Academy Charter Schools – NYC, an education corporation with authority to operate Success Academy Charter School – Hudson Yards (“SA Hudson Yards” or the “school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer the school a co-location site in a public school building or space in a privately-owned or other publicly-owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law § 2853 (3) (e).  The appeal must be sustained.

Petitioner is authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate SA Hudson Yards.  The school was initially authorized to serve students in kindergarten through grade 4.[1]  Petitioner states that, in April 2025, the school’s charter was revised to authorize the schools to expand to serve students in grades 5 through 8.[2]  According to petitioner, the schools will expand to serve students in grades 5 through 8 in the 2025-2026 school year.

On April 16, 2025, a written request for co-location was submitted for SA Hudson Yards’ grades 5 through 8, pursuant to Education Law § 2853 (3) (e).  By letter dated June 26, 2025, DOE acknowledged the request for space but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that, as a result of DOE’s denial, it is entitled to an order directing DOE to pay rental assistance for SA Hudson Yards’ grades 5 through 8 in accordance with Education Law § 2853 (3) (e) (5).

Respondent admits that it did not offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to the school.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Education Law § 2853 (3) (e) provides that, in the City School District of the City of New York, charter schools that require additional space due to an expansion of grade level approved by their charter entity for the 2014-2015 school year or thereafter, and request co-location in a public school building, shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no cost to the charter school (Education Law § 2853 [3] [e] [1]).

Here, DOE responded to the April 16, 2025 co-location request, but did not offer SA Hudson Yards a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to the school.  As DOE has not offered any facilities at the expense of the city school district and at no cost to the school, it failed to comply with the requirements of Education Law § 2853 (3) (e) (1).

The record indicates that, in April 2025, SA Hudson Yards was authorized by its charter entity to expand to serve students in grades 5 through 8.  The school will expand to serve students in grades 5 through 8 in the 2025-2026 school year—expansions for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that SA Hudson Yards requires additional space due to an expansion of grade level that was approved by its charter entity for the 2014-2015 school year or thereafter.  Petitioner has, thus, met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly-owned space for the school (see Education Law § 2853 [3] [e]).

Accordingly, DOE must pay petitioner for SA Hudson Yards’ newly-added grades 5 through 8 commencing in the 2025-2026 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to its expansion to grades 5 through 8 that is calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).

In this instance, there is no evidence in the record that petitioner has been afforded the opportunity to select an alternative privately-owned site and respondent must afford petitioner an opportunity to do so.  Petitioner must present DOE with evidence of the amount of the actual rental cost of an alternative privately-owned site attributable to the grade-level expansion so that DOE can determine whether such rental cost is less than the amount computed pursuant to Education Law § 2853 (3) (e) (5) (B).

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent comply with the requirements of Education Law § 2853 (3) (e) (5) in accordance with this decision and pay for the school’s newly-added grades 5 through 8 for each remaining year of the current charter term and for any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to the grade-level expansion that is calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).

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