Matter of United Jewish Community of Blooming
Grove, Inc. v Washingtonville Sch. Cent. Sch. Dist.
2021 NY Slip Op 34140(U)
November 18, 2021
Supreme Court, Albany County
Docket Number: Index No. 906129-21
Judge: Peter A. Lynch
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
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FILED: APPELLATE DIVISION - 3RD DEPT - PENDING 534406
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/23/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF ALBANY
In the Matter of
UNITED JEWISH COMMUNITY OF BLOOMING
GROVE, INC., JOEL STERN, As Parent and Natural
Guardian of K.S. and M.S. and RS. and B.S. and
F.S., Infants under the Age of Eighteen Years,
YITZCHOK EKSTEIN, As Parent and Natural
Guarding of J.E. and C.E. and M.E. and P.E.,
Infants under the Age of Eighteen Years,
Petitioners-Plaintiffs,
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules and for Declaratory Relief
Pursuant to Section 3001 of the Civil
Practice Law and Rules
-against- DECISION, ORDER
and JUDGMENT
Index No. 906129-21
RJI No. 01-21-ST1835
(Hon. Lynch, J.)
WASHINGTONVILLE SCHOOL CENTRAL
SCHOOL DISTRICT and the
NEW YORK STATE EDUCATION
DEPARTMENT,
Respondents-Defendants.
INTRODUCTION
This is a hybrid proceeding pursuant to CPLR Article 78 and a Declaratory Judgment
action pursuant to CPLR §3001.
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By Decision and Order dated August 25, 2021, incorporated herein and made a part
hereof by reference, this Court granted Plaintiff's motion for a mandatory preliminary injunction.
The standard for a permanent injunction is essentially the same as that of a preliminary
injunction but requires that the party seeking the injunction prevail on the underlying merits of
the case (see Town ofN. E. v Vitiello, 159 A.D.3d 766 [2d Dept. 2018]; Town ofBrookhaven v.
Mascia, 38 A.D.3d 758, 759 [2d Dept. 2007]; Town ofNassau v. Nalley, 52 A.D. 3d 1013 [3d
Dept. 2008], Iv denied 11 N.Y. 3d 771 [2008]).
Plaintiff moved for summary judgment seeking a declaration that they are entitled to a
permanent mandatory injunction, requiring the defendant school district to provide transportation
to all children in the district who attend non-public schools on each day that their school is in
session, regardless of whether the public schools are open. Defendants oppose the relief
requested, claiming that they are only obligated to provide bus transportation on days when the
public schools are open. 1 Defendant SED cross-moved for summary judgment to dismiss the
complaint. 2
To the extent that Defendants cite procedural irregularities arising out of Plaintiff's
failure to specifically reference the Answer in it' s motion and to submit a statement of material
facts, the Court will excuse the claimed irregularities (see CPLR § 2001). 3 Clearly, where, as
here, all pleadings are e-filed, there is no prejudice arising out of the claim. Moreover, resolution
of the issue is a matter of statutory interpretation, and there are no material issues of fact. Hence,
a summary determination is appropriate.
1 NYSEF Doc. No. 131 Pinsonnault Aff. ~ 14
2 NYSEF Doc. No. 129-132.
3 NYSEF Doc. No. 123 Rushfield Aff. ~ 2-4.
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STATEMENT OF FACTS
As aforementioned, the statement of facts in my prior decision are incorporated herein by
reference.
The New York State Education Department (SED) has long dealt with the practical issue
of providing transportation to non-public school students on days when the public schools are
closed. In fact, SED issued the Transportation Supervisor Handbook in 1992 to advise that
transportation services were not so required on days when the public schools were closed. 4
As of 2007, SED continued to publish its Handbook position on its webpage, to wit:
"School districts and private schools have an obligation to share
their calendars and start/dismissal times during the summer months
prior to the opening of school. Public school districts do not have
the legal authority to transport to a private school before the
start of the public school year. So if your district opens on
September 10th and a private school opens on Sept 5th, you must
not provide transportation until Sept 10th. Public school districts
also do not have the legal authority to provide transportation
on the legal holidays that the state requires that the public
school district be closed. On other optional holidays and other
days a district is closed (conference days, training days, etc), then
the public school district may choose to provide transportation to
private schools. However, if they decide not to, that intent and
information must have been provided to private schools when the
calendars and start/dismissal times were shared, prior to the start of
the school year. If a public school district did not state their intent
not to transport and did not share their calendar, then they would
be required to provide the transportation." 5 (emphasis added)
SED's practice tmder Education Law§ 3635, is to limit transportation to only those days when
the public schools are open.
4 NYSEF Doc. No. 138 Handbook @p. 170, 'if 11, which provides: "School districts are not required to provide
transportation to nonpublic schools on days when public schools are scheduled to be closed" (emphasis added);
see also, NYSEF Doc. No. 12 - Coughlin Affidavit 'if 4-5.
5 NYSEF Doc. No. 109. See also NYSEF Doc. No. 110.
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Education Law§ 3635 (2-a) specifically allows for up to five (5) to ten (10) days of
transportation to non-public schools, when public schools are closed. In the legislative history, a
similar restriction of two (2) days for all other districts was struck from the legislation. 6 No such
restriction is expressed under Education Law§ 3635 (1) (a), which is at issue herein.
Plaintiffs have not submitted any cognizable proof of monetary damages.
SUMMARY JUDGMENT
In Zuckerman v. New York, 49 N.Y.2d 557,562 [1980], where the Court held,
"To obtain summary judgment it is necessary that the movant
establish his cause of action or defense 'sufficiently to warrant the
court as a matter oflaw in directing judgment' in his favor (CPLR
3212, subd [b]), and he must do so by tender of evidentiary proof
in admissible form. On the other hand, to defeat a motion for
summary judgment the opposing party must 'show facts sufficient
to require a trial of any issue of fact' (CPLR 3212, subd [b]).
Normally if the opponent is to succeed in defeating a summary
judgment motion, he, too, must make his showing by producing
evidentiary proof in admissible form. The rule with respect to
defeating a motion for summary judgment, however, is more
flexible, for the opposing party, as contrasted with the movant,
may be permitted to demonstrate acceptable excuse for his failure
to meet the strict requirement of tender in admissible form."
(internal quotations and citations omitted)."
Recognizing that summary judgment is a "drastic remedy" the "facts must be viewed in the
light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d
499, 503 [2012]) (emphasis added). The Court's function is "not to determine credibility, but
whether there exists a factual issue, or if arguably there is a genuine issue of fact" (see S. J.
Capelin Associates, Inc. v. Globe Mfg. Corp .. 34 N.Y.2d 338, 341 [1974]); see also Sillman v.
Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957] where the Court held, "issue-
finding, rather than issue-determination, is the key to the procedure" (emphasis added).
6 NYSEF Doc. No. 38, p. 18.
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Here, there are no material facts at issue. The issue is limited to the interpretation of the
provisions of Education Law§ 3635, and, as an issue oflaw only, summary determination is
appropriate.
In this Court's view, it is fundamental error to assume that the identification of SED's
transportation practice is equivalent to a determination of the legislative mandate under
Education Law§ 3635 (1) (a). To the contrary, the record shows that SED has long implemented
a self-serving practice, in derogation of its statutory obligation, all as more fully appears below.
Education Law § 3635 provides, inter alia:
1.
a. Sufficient transportation facilities (including the operation and
maintenance of motor vehicles) shall be provided by the school
district for all the children residing within the school district to
and from the school they legally attend ... The cost of providing
such transportation between two or three miles, as the case may be,
and fifteen miles shall be considered for the purposes of this
chapter to be a charge upon the district and an ordinary contingent
expense of the district...
b.
(i) School districts providing transportation to a nonpublic school
for pupils living within a specified distance from such school shall
designate one or more public schools as centralized pick-up points
and shall provide transportation between such points and such
nonpublic schools for students residing in the district who live too
far from such nonpublic schools to qualify for transportation
between home and school. The district shall not be responsible for
the provision of transportation for pupils between their home and
such pick-up points. The district may provide school bus
transportation to a pupil if the residence of the pupil is located on
an established route for the transportation of pupils to the
centralized pick-up point provided such transportation does not
result in additional costs to the district. The cost of providing
transportation between such pick-up points and such nonpublic
schools shall be an ordinary contingent expense.
(ii) A board of education may, at its discretion, provide
transportation for pupils residing within the district to a nonpublic
school located more than fifteen miles from the home of any such
pupil provided that such transportation has been provided to such
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nonpublic school pursuant to this subdivision in at least one of the
immediately preceding three school years and such transportation
is provided from one or more centralized pick-up points designated
pursuant to this paragraph and that the distance from such pick-up
points to the nonpublic school is not more than fifteen miles. The
district shall not be responsible for the provision of transportation
for pupils between pupils homes and such pick-up points. The cost
of providing transportation between such pick-up points and such
nonpublic schools shall be an ordinary contingent expense.
c. The foregoing provisions of this subdivision shall not require
transportation to be provided for children residing within a city
school district, but if provided by such district pursuant to other
provisions of this chapter, such transportation shall be offered
equally to all such children in like circumstances ...
d. Nothing contained in this subdivision, however, shall be deemed
to require a school district to furnish transportation to a child
directly to or from his or her home ...
2-a. The superintendent of each city school district, in a city
having a population in excess of one million, shall prepare a
public school calendar and shall notify officials of nonpublic
schools to which transportation has been requested not later than
the first day of June in each year, of the days on which the public
schools will be in session in the following school year. Such
school district which provides transportation to nonpublic
schools shall provide such transportation for the same number
of days as the public schools are open but shall not provide
transportation services for more than one hundred eighty days.
Officials of each nonpublic school to which transportation is
provided by a city school district of a city having a population in
excess of one million may notify such district, not later than the
first day of July of each school year, of a maximum of five days,
exclusive of Saturdays, Sundays or legal holidays upon which
public schools are required to be closed, on which the public
schools are scheduled to be closed, except that in any year in
which the first or last day of Passover and Easter Stmday are
separated by more than seven days, such officials may notify the
district of a maximum of ten days, but such school district will
be required to provide for transportation to such nonpublic
school provided that such five or ten additional days,
whichever is applicable, are limited to the following: the
Tuesday, Wednesday, Thursday and Friday after Labor Day, Rosh
Hashanah, Y om Kippur, the week in which public schools are
closed for spring recess, December twenty-fourth and the week
between Christmas day and New Year's day, the Tuesday,
Wednesday, Thursday and Friday after the observance of
Washington's birthday, and, in the boroughs of Brooklyn and
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Queens only, Anniversary Day as designated in section twenty-five
hundred eighty-six of this chapter...
Defendants have focused their statutory interpretation of the scope of the Education Law§ 3635
(1) (a) mandate, on the restrictions imposed under paragraph 2-a thereof. Defendant's focus is
misplaced.
STATUTORY INTERPRETATION
The Court notes that "where the constitutionality of an act may be rendered doubtful, the
court will first ascertain whether a construction of the act is fairly possible by which the question
may be avoided" (see McKinney's Statutes§ 150 (c)). Where, as here, such construction is
readily permissible in this case, the Court need not determine the merit of Plaintiffs equal
protection and freedom of religion constitutional claims under (NY Const. art I, § 11 and NY
Const. art I,§ 3, respectively; see also, Everson v. Board of Education of the Township of
Ewing, 330 U.S. 1).
Generally, the underlying administrative interpretation of a statute is afforded great
weight by the Court (see McKinney's Statutes§ 129; see also Trump-Equitable Fifth Ave. Co. v.
Gliedman, 62 N.Y. 2d 539,545 [1984]; Kison v. Wilkie, 139 S.Ct. 2400, 2405-2406 [2019]).
Deference to an administrative interpretation is not required, however, when the issue at hand is
one of statutory construction (see Matter of Suffolk Regional Off-Track Betting Com. v. New
York State Racing & Wagering Bd., 11 N.Y.3d 559, 567 [2008], where the Court held,
"First and foremost, it is our role to implement the intent of the
Legislature. Deference to administrative agencies charged
with enforcing a statute is not required when an issue is one of
pure statutory analysis. Even ifno deference is owed to an
agency's reading of a statute, a court can nevertheless defer to an
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agency's definition of a tenn of art contained within a statute").
(emphasis added)
It is the Court's ultimate responsibility to interpret a statute, with full recognition of the
underlying legislative intent (See Matter of Academy v. New York State Educ. Dept., 169 A.D.
3d 1287, 1288 [3d Dept. 2019]; Rackmyer v. Gates-Chili Cent. School Dist., 48 A.D.2d 180, 183
[4th Dept. 1975], where the Court held,
"While appeal to the commissioner is exclusive where the
exercise of discretion is involved, where rights depend upon the
interpretation of a statute which it is claimed the school board or
an official has violated, the courts will determine the matter
notwithstanding that another procedure for settling the controversy
is available". (emphasis added)
; see also, Martin v. Brienger, 49 Misc. 2d 130, 133 [Sup. Ct. 1966], affd on op below 26 A.D.
2d 772 [1966], where the Court rejected the Education Commissioner's interpretation of
Education Law§ 3635, finding,
"The difficulty with such argument is that the construction placed
on the phrase "nearest available parochial school" is that of the
Commissioner of Education and not of a Supreme Court, and
there is nothing in the Governor's memorandum which specifically
adopts, confinns or approves the various interpretations placed
upon said phrase by the Commissioner in the afore-mentioned
cases .. ."). (emphasis added)
Where, as here, the text of the statute is clear, the Court must also give import to its plain
meaning (see People v. Aragon, 28 N.Y. 3d 125, 128 [2016]; People v. Ocasio, 28 N.Y. 3d 178,
181 [2016]; Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383,389 [2008]); see Hernandez v
State of New York, 173 A.D.3d 105, 111 [3d Dept. 2019], where the Court held, inter alia:
"It is a well-settled and basic tenet of constitutional and statutory
interpretation that the clearest and most compelling indicator of the
drafters intent is the language itself. [R]esort must be had to the
natural signification of the words employed, and if they have a
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definite meaning, which involves no absurdity or contradiction,
there is no room for construction and courts have no right to add
to or take away from that meaning. In other words, [w ]hen th[ e]
language is clear and leads to no absurd conclusion, the words
must be accorded their plain and ordinary meaning." (internal
quotations and citations omitted; emphasis added)
; Matter ofNorth Gate Health Care Facility, LLC v. Zucker, 174 A.D. 3d 1202, 1202-1203 [3d
Dept. 2019]).
Education Law§ 3635 (1) (a) plainly states, "Sufficient transportation facilities ... shall be
provided by the school district for all the children residing within the school district to and from
the school they legally attend." (emphasis added) Once again, "All the children" means all the
children, without regard to whether the school they attend is private or public. It is manifest that
the phrase "Legally attend" means exactly what is says and necessarily includes both private and
public schools (see Rackmyerv. Gates-Chili Cent. School Dist., supra. at 184, where the Court
interpreted the terms of Education Law§ 3635 (1) as "absolute"; Martin v. Brienger, supra. at
133, where the Court held, inter alia: "The court is of the view that the statute means exactly
what it says").
Paragraph 1 (a) of the statute does not expressly impose any other restriction, and
certainly does not condition the obligation to provide transportation to nonpublic schools on the
public schools also being open; such omission is meaningful and evinces a legislative intent not
to limit the express terms thereof (see, Hernandez v State of New York, supra. at 112, where the
Court held the absence of any restriction was meaningful, stating,
''the choice to use the broad and expansive word "employees"
in NY Constitution, article I, § 17, without qualification or
restriction, was a deliberate one that was meant to afford the
constitutional right to organize and collectively bargain to any
person who fits within the plain and ordinary meaning of that
word. Indeed, there is nothing in the language of the
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constitutional provision to support the suggestion that the
drafters intended for the term "employees" to be narrowed or
limited in any way.") (emphasis added)
It is not the Court's function to expand upon or restrict the statutory mandate (see
Commonwealth of the N. Mariana Is. v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55,
62 [2013], where the Court held, ''we cannot read into the statute that which was specifically
omitted by the legislature"; Matter ofRonell W. v. Nancy G., 121 A.D.3d 912 [2d Dept. 2014]).
In O'Donnell v. Antin, 81 Misc. 2d 849 [Sup. Ct. 1974], affd on op below 36 N.Y. 2d
941 [1975], the Court upheld the district's determination not to provide bus transportation to
children who lived in the district but attended private school outside of the district. In so doing,
the Court found "defendant board continues to bus all children to all schools within the
district, regardless of affiliation." (id.at 850) (emphasis added). (see also, Charter Sch. for
Applied Tech. v Board of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460 [4th
Dept. 2013], where the Court held, "It is undisputed, however, that CSAT is located outside the
District, and "students attending school outside the [D]istrict are not 'in like circumstances' with
students attending school within the [D]istrict"). Here, as distinguished, it is manifest that
Plaintiffs live and attend schools in the district, but the transportation presently provided by
Defendants varies because of affiliation with private, as distinct from public schools.
Defendants assert that the SED's guidance and District policy are consistent with the
legislative history. In 1985, Education Law§ 3635 was amended, adding paragraph 2-a to
designate between 5 and 10 transportation days for nonpublic schools when public schools were
scheduled to be closed in cities with a population more than one million people. The legislative
history clearly indicated that New York City public schools were not, in practice, providing
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transportation unless they were open. 7 The statutory language of paragraph 2 -a, includes the
following phrases, "of a maximum", "are limited to the following", and "shall not provide
transportation services for more than one hundred eighty days". (emphasis added) This
language indicates that the designation of 5-10 transportation days for nonpublic schools was an
addition to the New York City practice of only providing transportation on days when the public
schools were open. While no such limiting language exists under paragraph 1 (a), which is
applicable to this district, Defendants cite the legislative history that a 2-day designation for
transportation to non-public schools when public schools were closed for all other districts, was
initially proposed in 1985 but eliminated from the legislation. 8 Defendants assert that such
history necessitates the statute be interpreted to require transportation only on days when the
public schools are open. The plain text of the statute, however, contains no such limitation.
Moreover, there is no showing that the legislature's intent in 1985 when it amended the statute to
add paragraph 2-a, was the same as the legislative intent at the time paragraph (1) (a) was
initially enacted in 1939 as more fully appears below (see Matter of Avella v City ofNew York,
29 N.Y.3d 425,437 [2017], where the court held, "that the legislature used different words in
2005 does not shed any real light on what the 1961 legislature meant").
Does the cited legislative history from 1985 take precedence over the plain statutory text?
It does not (see Matter of Avella v City ofNew York, supra. at 437, where the court held,
"The plain language of the statute does not authorize the
proposed construction, and we therefore need not consider the
legislative history.") (emphasis added)
7 NYSEF Doc. No. 38; NYSEF Doc. No. 132 ~ 9.
8 NYSEF Doc. No. 132 ~ 12 -13.
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; Hinton v Village of Pulaski, 33 N .Y.3d 931 [2019], where the Court held,
"Where, as here, the legislative language is clear, we have no
occasion to examine extrinsic evidence to discover legislative
intent"). (emphasis added)
: Makinen v City ofNew York, 30 N .Y.3d 81 , 85 [2017], where the Court held,
"[w]here [, as here,] the legislative language is clear, [we have] no
occasion [to] examin[e] ... extrinsic evidence to discover
legislative intent" (McKinney's Cons Laws of NY, Book 1,
Statutes § 120, Comment at 242).
; Davila v State of New York, 183 A.D.3d 1164, 1167 [3d Dept. 2020], where the Court held,
Where, as here, "the disputed [statutory] language is unambiguous,
we are bound to give effect to its plain meaning," and, inasmuch as
"the legislative language is clear, we have no occasion to
examine extrinsic evidence to discover legislative intent").
(emphasis added)
The point made is that the legislature did not amend paragraph 1 (a) in 1985, and its continuing
plain language is neither subject to, nor defeated by the cited legislative history.
While the Court need not resort to a review of the legislative history to determine the
Legislature's intent, a review of the primary legislative history, encompassing the 1938
Constitutional amendment and its implementing legislation in 1939, demonstrates that paragraph
1 (a) must be interpreted in accord with the plain meaning of its text.
In 1938 the constitution was amended to add NY Const art XI,§ 3, which provides, inter
alia:
" . . .the legislature may provide for the transportation of
children to and from any school or institution oflearning."
(emphasis added) 9
9 At that time, it was NY Const. art XI § 4, and has been renwnbered since.
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The constitutional amendment was implemented by the passage of the Coudert-McCreery bill of
1939 (Laws of 1939, Ch. 465), to provide transportation for private, as well as public schools.
In relevant part, the 1939 legislation included the following, to wit:
"In providing or granting transportation for children pursuant to
the provisions of this chapter, sufficient transportation facilities
(including the operation and maintenance of motor vehicles) shall
be provided for all children residing within the school district
to and from the school they legally attend ..." (emphasis added) 10
There is nothing in the 1939 Bill Jacket Collection which made transportation to private shools
contingent upon public schools being open. That essential text remains intact to date in
Education Law§ 3635 (1) (a).
The next primary amendment came with the passage of the Speno-Brennan Bill in 1960
(I. 1960, Ch. 1074). This legislation included the foregoing basic transportation mandate but
added specific requirements to define and limit the minimum and maximum transportation
distances. Upon approval of the legislation, then Governor Nelson A. Rockefeller issued a
Memorandum stating, inter alia: "The law requires that children attending private schools be
afforded transportation on a parity with public school pupils." 11 (emphasis added) The
Memorandum accompanying the Senate Bill provided,
10 As enacted, this text appeared initially appeared in Education Law Article 18, § 503. The Education law went
through a procedural revision and its provisions were renumbered (Laws 1947, Ch. 820).
11 See L. 1960 Ch.1074, Bill Jacket Collection p.225-226/257.
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"The law requires that children attending private school be
afforded transportation on a parity with public
school...[and] ... such transportation must be furnished equally to
all children residing in the district attending both public and
non-public schools. The law presently provides transportation
benefits for children to the school which they legally attend."
(internal quotations omitted; emphasis added) 12
(see also, Board of Education v. Allen, 20 N.Y.2d 109, 117 [1967], where the Court held,
"At a time when we have large-scale Federal and State aid to
education, it is justly feared that children who are denied these
benefits may receive education inferior to children in public
schools. Unless certain types of aid can be made available
to all children, we run the risk of creating an educational lag
between children in public and private schools."
; Application ofBoard of Education, 199 Misc. 631 [Sup. Ct. 1961]). The point made is that the
primary legislative history (i.e., 1938 constitutional amendment, implementation thereof in 1939,
as well as the 1960 amendment) does evidence a legislative intent that the obligation to provide
transportation to private school students within the District stands as an independent mandate
and is not dependent upon the public schools being open.
Defendant SED claims that Education Law § 3635 requires the District to provide
"sufficient transportation", citing the dictionary to assert that sufficient means adequate. 13 It
appears the argument is made to support Defendant's assertion that providing transportation on
only those days public schools are open is sufficient! Defendants have, however, misrepresented
the statute's text. The statute mandates the provision of "Sufficient transportation facilities
(including the operation and maintenance of motor vehicles)." (emphasis added) This
directive speaks to the means, not the scope, of the transportation mandate to provide
12 See L. 1960 Ch.1074, Bill Jacket Collection p. 231-232/257.
13 NYSEF Doc. No. 131 Pinsonnault Aff-J 11.
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transportation "for all the children residing within the school district to and from the school they
legally attend." (Education Law§ 3635 (1) (a))
Defendant SED asserts it "does not read Education Law § 3635 as entitling nonpublic
students to more transportation than public school students." 14 Such statement fails to account
for the number of days that public schools are open, and non-public schools are closed. Yet, it is
true that Education Law§ 3635 makes no such distinction, but it is a distinction without a
difference. As aforementioned, Education Law§ 3635 (1) (a) mandates transportation "for all
the children residing within the school district to and from the school they legally attend," and
the attendance at nonpublic school is lawful, regardless of whether the public schools are open.
CONCLUSION
Accordingly, Defendant SED's cross-motion for summary judgment is denied, and
Plaintiffs motion for summary judgment is Granted, and it is further,
ORDERED, ADJUDGED AND DECREED, that Education Law§ 3635(1) requires the
Washingtonville Central School District to provide transportation to all nonpublic school
students on all days when their nonpublic schools are open for instruction, regardless of whether
the public schools are open, and it is further
ORDERED, ADJUDGED AND DECREED, that the Washingtonville Central School
District be and hereby is directed to provide transportation to all nonpublic school students on all
days that the nonpublic schools are open for instruction, as required by Education Law §
3635(1), and it is further
14 NYSEF Doc. No. 132 ,i 14.
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FILED: ALBANY COUNTY CLERK 11/18/2021 02:19 PM INDEX NO. 906129-21
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/18/2021
ORDERED, ADJUDGED AND DECREED, that the Washingtonville Central School
District is in violation of Education Law§ 3635(1) by refusing to provide transportation to
nonpublic school students on all days when the nonpublic schools are open for instruction, and it
is further
ORDERED, ADJUDGED AND DECREED, the State Education Department's guidance
on transportation for nonpublic school students to the extent that it states transportation is
required only on those days when public schools are open is null and void, on the grounds that it
violates Education Law§ 3635 (1); and it is further
ORDERED, ADJUDGED AND DECREED, that the Washingtonville Central School
District is permanently enjoined from denying transportation to any nonpublic school students on
all days that their nonpublic schools are open for instruction; and it is further,
ORDERED, ADJUDGED AND DECREED, that Plaintiffs claim for an award of
monetary damages and attorney fees is denied.
This memorandum constitutes both the decision, order and judgment of the Court. 15
Dated: Albany, New York
November 18, 2021
~~ 11/18/2021
15 Notice of Entry and service in accord with CPLR R 2220 is required.
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FILED: ALBANY COUNTY CLERK 11/18/2021 02:19 PM INDEX NO. 906129-21
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/18/2021
PAPERS CONSIDERED:
All e-filed pleadings, with exhibits.
To: WHITEMAN OSTERMAN & HANNA LLP
By: Robert S. Rosborough IV and Hilda M. Curtin
Attorneys for Petitioners-Plaintiffs
One Commerce Plaza
Albany, New York 12260
Mark C. Rushfield, Esq.
Shaw, Perelson, May & Lambert, LLP
Attorneys for Defendant-Respondent
Washingtonville Central School District
21 Van Wagner Road
Poughkeepsie, New York 12603
Letitia James, New York Attorney General
By: Erik Pinsonnault, Assistant Attorney General
Attorney for Defendant SED
The Capitol
Albany, New York 12224-0341
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[* 17]
Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Sch. Cent. Sch. Dist.
Combined Opinion