When parents prevail following a hearing conducted before an Impartial Hearing Officer (IHO), the NYCDOE has 35 days from the date of the IHO’s decision to serve its appeal papers.  Those papers normally must be timely served directly upon the student’s parents.

In S.H. et al. v. NYCDOE, a case in which we represented the student, the IHO held for the student and his parents and the NYCDOE decided to appeal.  There was only one problem.  The NYCDOE apparently did not even attempt to serve its appeal papers until the afternoon of the very last day to so and when that attempt was made, the student and his parents were not home.  Accordingly, the NYCDOE’s appeal papers were not timely served.  While service of the NYCDOE’s appeal papers ultimately was made, it was done so untimely as the NYCDOE failed to effectuate service within 35 days of the IHO’s decision.

The State Review Officer dismissed the NYCDOE’s appeal as untimely and rejected the NYCDOE’s plea for an extension.  Undaunted, the NYCDOE filed a further appeal with the federal district court in Manhattan and then upped the ante, claiming that the reason why service was not timely made was because the student’s parents did not actually reside at the Manhattan address given for service!  In other words, the NYCDOE claimed that the student’s parents were lying about their Manhattan residence.

Our office moved to dismiss the NYCDOE’s appeal on the basis that the City’s appeal was untimely and that therefore, the Court did not have subject matter jurisdiction.  We also submitted voluminous documentation to show that the student and his parents actually resided (and continue to reside) at the NYC address indicated on the student’s DOE IEP.  That documentation included bank statements, credit card statements, tax returns evidencing the payment of New York City taxes, utility bills, cable bills, and even photographs of every room in the family’s NYC apartment evidencing regular day-to-day living arrangements.

By Decision dated January 22, 2014, the federal district court (Hon. Alison J. Nathan) dismissed the NYCDOE’s (untimely) appeal on the grounds that the court lacked subject matter jurisdiction, stating:

“Common sense dictates that dropping by a person’s apartment building twice on a weekday is not a foolproof method for encountering that person.  It was unreasonable for the City to believe otherwise … the City should have expected last-minute personal service to be difficult…” (Emphasis added).

As a result of the district court’s ruling, the family is now entitled to the tuition funding relief awarded at the IHO level, and also is now entitled to make an application before the federal court to recover the reasonable attorney’s fees recorded at the IHO, SRO and district court levels.

In the middle of the 2012 football season, Brick Township High School senior Anthony Starego, then 18, was competitively selected to be a starting placekicker on Brick’s varsity football team the Green Dragons.  That achievement alone was fairly unprecedented, given that Anthony is diagnosed with autism and other related challenges. Anthony came alive as a player during the 2012 season, with a corresponding increase in his confidence and self esteem.  ESPN covered Anthony’s inspiring story with its film “Kick of Hope.” But then, just a few games later, the 2012 football season was over.

Brick finished its lackluster 2012 season with more losses than wins. Anthony, on the other hand, was going to be staying on at Brick as an IEP student until he turned 21. Accordingly, Anthony’s coaches made application to the New Jersey State Interscholastic Athletic Association (NJSIAA) for a waiver to allow Anthony one further season of competitive play.  Anthony needed the waiver from the NJSIAA because he was going to be 19 at the start of the 2013 football season.  The NJSIAA denied Anthony’s request, citing several reasons for its denial.  Autism Speaks, after being contacted by Anthony’s father, asked Gary Mayerson whether further legal action could be taken that would allow Anthony one further season of competitive play.

In the Spring of 2013, Gary and associate Jacqueline DeVore filed an ADA action in the Trenton, NJ federal district court.  The firm also filed a related appeal in the New Jersey Superior Court.  After a trial, the federal district court rejected as invalid each and every one of the reasons that the NJSIAA had given for denying the waiver request. The district court’s analysis helped to spark further settlement discussions and ultimately, the NJSIAA and New Jersey’s Commissioner of Education agreed that Anthony would be granted a waiver to allow him to play out the 2013 season.

Anthony and his parents were elated at the news, but Anthony still had to compete to win his former position back.  It took Anthony weeks to do so, but as of mid-season, Anthony was back in excellent kicking form, consistently succeeding with his field goal attempts.

Incredibly, the same lackluster team that had not had a winning season for years made it into the playoffs. In fact, Brick emerged from the playoffs with enough wins to play Colts Neck for the State Championship. In a classic, storybook ending, Anthony contributed points from two successful field goal attempts to help his Brick teammates win the State Championship game, 26-15.  In so doing, Anthony made history and helped pave the way for more Anthonys to come.

It has long been the policy of the New York State Education Department (“NYSED”) to encourage school districts to first consider any appropriate in-state residential placement options before considering residential options that may be located in other states.