SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK LISA STEGLICH, individually and as parent and natural guardian : of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY Index No. 104300/11 CHERWIN, infant, CAROL BARKER, individually and as parent ‘of OMARI BROWN, infant, GINA : DEMETRIUS, individually and as parent and natural guardian of IAS Part 29 (Torres, J.) SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually : and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian of HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL,: infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant, Petitioners, -against- ‘THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. : WALCOTT, as Chancellor-Designate of the City School District of the City of New York, Respondents. x PETITIONERS’ MEMORANDUM OF LAW OPPOSITION TO MOTION TO INTERVENI PHILLIPS NIZER LLP 666 Fifth Avenue New York, NY 10103 (212) 977-9700 Attorney for Petitioners Of Counsel: Jon Schuyler Brooks Mare Andrew Landis Meagan A. Zapotocky 11430874TABLE OF CONTENTS PRELIMINARY STATEMENT sess ‘STATEMENT OF FACTS .. ARGUMENT.. 1. The Motion to Intervene is Procedurally Defective .... IL The Movants Lack Standing to Intervene and Are Not “Interested Parties”. CONCLUSION wsssnsnses 11430874TABLE OF AUTHORITIES CASES Bernstein v. Feiner, 43 A.D.3d 1161 (2d Dep't 2007).. Carriage Hill, Inc. v. Lane, 20 A.D.2d 914 (2d Dep't 1964).. Colonial Sand and Stone Co. v. Flacke, 75 A.D.2d 894 (2d Dep't 1980) Greater New York Health Care v. DeBuono, 91 N.Y.2d 716 (1998)... Howard v. Diamond, 76 Misc.2d 809 (Sup. Ct. Monroe County 1974). New York State Senator Kruger v. Bloomberg, 1 Misc.3d 192 (Sup. Ct New York Cnty 2003)... 7 : New York Times Co. v. City of New York Fire Dep't, 195 Misc.2d 119 (Sup. Ct. New York Cnty 2003) ... oe 6 N.Y. County Lawyers’ Ass'n v. Bloomberg, 30 Misc.3d 161 (Sup. Ct. N.Y. County 2010) ‘Salnikova v. Cuomo, 2010 NY Slip Op 32791(U) at 17, 20 & 22 (Oct. 1, 2010) Appeal of Santos, Decision of Comm'r of Educ. No. 16,116 (Aug. 2, 2010) Matter of Unitarian Universalist Church v. Shorten, 64 Misc 2d 851 (Sup. Ct., Nassau Cty Trial Term 1970). Virgo v. Zoning Board of Appeals of the Town of rondequoit, 28 Misc.2d 886 (Sup. Ct. Monroe County 1961) semen Zehnder v. State of New York, 266 A.D.2d 224 (2d Dep't 1999 STATUTES AND REGULATIONS CPLR § 7802(a) Educ. L. § 2590-h (2-al(e) Chancellor's Regulation A-190 § IL.C.5 1143087.T0A,Petitioners, by their attorney Phillips Nizer LLP, submit this memorandum of law in opposition to the motion filed by Success Academy Charter School (“SACS"),' individuals Mathew Morey, Martin Aares, Gabriel Baez, Lisbeth Delossantos, Elana Kilkenny, Elissa Klein, Rebecca Kuhar, Latisha Singletary, Michael Suchanek, and David Turnoff (the “Parents”), and infants Thomas Morey, Claire Morey, Sabine Ballou-Aares, Christopher Baez, Miyah Muzo, Liam Kilkenny, Ava Klein, Robert Maxwell Kuhar, Raniyah Garrett-Wells, Sally Suchanek, ‘Amelia Suchanek, and Hunter Kim-Tumoff, by their respective parents and natural guardians (the “Infants”) (collectively, the “Movants”) to intervene (the “Motion to Intervene”) in this Article 78 proceeding, PRELIMINARY STATEMENT This Article 78 proceeding asks one question and one question only: in connection with the proposal to co-locate SACS in the Brandeis Educational Campus (the “Brandeis Campus”), did the named Respondents ~ the Board of Education of the City School District of the City of New York (now referred to as the Panel for Educational Policy (“PEP”)), the Chancellor of the City School District of the City of New York (the “Chancellor”), and the New York City Department of Education (“DOE”) — follow and satisfy all aspects of the process mandated by ‘New York State Education Law, the Regulations of the Chancellor (the “Chancellor’s Regulations”), and the PEP By-Laws. As demonstrated in the Verified Petition, the answer to that singular question is, for multiple reasons, a resounding “no.” By contrast, this Article 78 proceeding does not ask whether charter schools should exist, whether SACS should exist, whether the SACS" lottery was valid, or whether the Infants will be ' SACS seeks to change its name to “Upper West Success Academy Charter School.” As SACS concedes, the New York State Department of Education has not yet approved that proposed change. Affidavit of Jennifer Sedlis, swom to April 19, 2011 ("Sedlis Aff”), 5. Accordingly, SACS is used in the Verified Petition and in this memorandum of ew. 11430874served better by a kindergarten experience provided by SACS or some other institution. Those questions, some possibly non-justiciable, are beyond the scope of this Article 78 proceedin; Consequently, contrary to the Movants” purposeful mischaracterization, Petitioners do not “seek to prevent [SACS] from opening its doors this fall.” Memorandum of Law in Support of Motion to Intervene (Mov. Memo”) at 1. Indeed, this Article 78 proceeding could not prevent SACS from opening its doors this fall: in the event the Verified Petition is granted, SACS still will be legally permitted to open its doors this fall (albeit not at an existing public school such as the Brandeis Campus), much the way Girls Preparatory Charter Schoo! of New York (“Girls Prep”) opened its doors to students in grades five and six in Fall 2010 in private rented space after the New York State Commissioner of Education invalidated its co-location in a public school as approved by PEP.’ SACS will be factually able to secure such alternative space, given not only the availability of space on Manhattan’s Upper West Side in the current real estate market, but also the near-3,000,000 cash-on-hand declared by SACS’ parent, the Success Charter Network, in its most-recently disclosed Financial Statement.* ? Curiously, among the Movants, not a single one of the ten Parents commits to send his or her ¢ SACS: two state they “consider [SACS] to be one of our top school choices” (Affidavits of Elana Rebecca Kuhat, each sworn to April 18, 2011, each at 4) (emphasis added); two others state they “intend” to send their children “given our current options” (Aiidavits of Elissa Klein and David Tumoff, each sworn to April 18, 2011, each at { 4) (emphasis added); five others state only they “intend” to send their children (Affidavits of Gabriel Baez and Lisbeth Delossantos, each sworn to April 19, 2011, Matthew Morey, Larisha Singletary, and Michael Suchanek, each sworn to April 18, 2011, all except Suchanek at 4 4, Suchanek at 5); and one indicates SACS is simply “our top school choice” (Affidavit of Martin Aares, sworn to April 18, 2011, at 5) 5 Girls Prep was an established charter elementary school. For the 2010-11 school year, it sought to add a middle school. On February 24, 2010 PEP approved the proposed expansion. The PEP approval, however, was challenged. (On August 2, 2010 ~ just wo weeks before the middle school was to open ~ the Commissioner invalidated the co- location of the expansion. Appea! of Santos, Decision of Comm’ of Educ. No. 16,116 (Aug. 2, 2010), available at brap://www.counsel.nysed gov/Decisions!valumeS0/d16116.htm. In response, Gitl's Prep entered into a lease for space in a privately-owned building. The Proposed Expansion of the Co-location of Girls Preparatory Charter ‘School (844330) with Existing Schools P.S. 188 The Island School (01M188) and P94M@M188 (75MO94) in Building M188, available at hitp:/!schools.nye.gov/community’planning/changes/manhattan/GPLS; see also, Ohm, Rachel, Girl Prep Gets a New Home, The Local East Village, Apr. 1, 2011, available at bep://eastillage.thelocal.nytimes.com/201 1/04/01 girls-prep-gets-a-new-home/#more-12583. * See hitpr/bartlett.ag.ny.gov/Char_Forms/show details jsp?id={F3E63910-5817-473B-9E8B-9B978DS1ESC1} 2 11430874