Davis et al. v. Aviles-Ramos et al.

S.D. New York

Davis et al. v. Aviles-Ramos et al.

DecidedNovember 4, 2025

Docket1:25-cv-07555

StatusUnknown

This text of Davis et al. v. Aviles-Ramos et al. (Davis et al. v. Aviles-Ramos et al.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis et al. v. Aviles-Ramos et al., (S.D.N.Y. 2025).

Pincite

Opinion

LIBERTY ¢ FREEDOM LEGAL GROUP, LTD

November 4, 2025 VIA ECF Hon. Katherine Polk Failla MEMO ENDORSED United States District Judge Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: Davis et al. v. Aviles-Ramos et al., 25-cv-07555 (KPF) Dear Judge Failla: Plaintiffs write in opposition to Defendants’ letter-motion for an extension of time until November 14, 2025, to submit a letter to this Court regarding DOE’s position on whether it may withhold pendency payments until a pendency order has been issued. As an initial matter, Defendants did not contact Plaintiffs’ counsel or seek our position on Defendants’ request for an extension of time, as required by Your Honor’s Individual Rules, 2.C. Moreover, on October 29, 2025, Your Honor asked counsel for DOE about its position on whether a pendency order is necessary before DOE can issue pendency payments. Counsel Rubini conferred with co-counsel and stated, “Generally it is DOE’s position that there is no obligation to pay pendency if there is no pendency order issued.” Transcript of hearing on October 29, 2025, p. 36. Counsel also offered to submit a letter stating what DOE’s position has been with respect to its pendency payments, in the context of its objections to our motions for injunctive relief. In essence, DOE now wants an additional 14 days to prepare a letter to the Court explaining DOE’s position as of last week, on October 29, 2025. While it is encouraging that DOE is reconsidering its position in light of Judge Vargas’ recent decision in Crespo, Defendants do not need an extension of time, let alone one lasting 14 days, to put in writing the position that DOE has consistently taken on that issue. Furthermore, Defendants have previously suggested in at least one other matter that DOE need not (and does not) begin the process of issuing payments for a student’s pendency until a pendency order has issued in the underlying administrative proceeding. For example, at a hearing held on September 19, 2025 in Crespo v. Aviles-Ramos (25-cv-7563), the following exchange occurred: MR. MAIELLO: Yes, your Honor. In regard to the second preliminary injunction and implementation, V.P. received his or her final decision this week or only a few days ago. And B.T. also does not have a decision that is ripe when

646-850-5035 | 30 East 33rd Street, 12" Floor, New York, NY 10016 | LibertyFreedom.law

it comes to implementation. THE COURT: We're talking about pendency. So for the moment let's focus on pendency and not the final decision. Why have no pendency payments been made? MR. MAIELLO: The pendency order for V.P. came out only a few days ago. So the payments will be made in the ordinary course of business, which may not be this week, but it will be with decently soon, as compared to this immediate week. And for B.T., no decision has been made when it comes to pendency and – THE COURT: Is DOE challenging it? Plaintiff is correct that it's not required that a pendency order issue. They’re entitled to pendency placement based on the then current placement at the beginning of the school year. So no IHO decision is actually necessary to implement pendency. MR. MAIELLO: I don't disagree, your Honor. However, the payments on it are not due immediately. They’re due in the ordinary course of business. THE COURT: Right. But isn’t the ordinary course taking a long time now? We’re now at the end of September. It sounds as if you haven't even put them in for processing because you're waiting for an order that they're not required to get. . . . . See Transcript of hearing on Sep. 19, 2025, pp. 13-14, an excerpt of which is attached hereto as Exhibit A. Additionally, in several matters, DOE has accused the Liberty and Freedom Legal Group of overzealously representing its clients (and iBRAIN, which is NOT a client) and engaging in sanctionable conduct in its filing of motions for injunctive relief seeking pendency payments. However, as the above-quoted transcripts show, DOE has failed to issue pendency payments (in a remotely timely manner), despite a student’s clear placement being at iBRAIN and even where the student’s pendency placement at iBRAIN is not disputed, unless a pendency order has issued for that student. Now that Judge Vargas issued her decision in Crespo confirming that DOE cannot simply withhold pendency payments where the legal basis for pendency is established by prior SRO decisions during the pendency of administrative proceedings on a parent’s due process complaint, it is clear that DOE’s position contravenes the IDEA and caselaw in this Circuit. See Crespo, 25-cv-7563, ECF No. 48, at 12. Judge Vargas wrote: The thrust of DOE’s argument is that, until it affirmatively agrees to pendency placement at iBRAIN, it has no obligation to implement pendency services based upon the prior SRO decisions. . . . DOE effectively argues that its authority to determine how a student’s then-current educational program is to be provided at public expense during the pendency of proceedings means that it can choose to withhold all payments for a student’s education. See Def. Br. at 5-9. Such a stance is plainly prohibited by the stay-put provision, which obligates DOE to “continue funding” the students’ education. Mendez, 65 F.4th 56, 61 (2d Cir. 2023). Id., pp. 12, 13. Therefore, there is no valid basis for DOE’s continued withholding of pendency payments, nor its conspicuous failure to proffer any reason for the delay in issuing the remaining outstanding payments in this (or any other) matter. In short, Plaintiffs object to Defendants’ letter-motion for an extension of time. Alternatively, if an extension is granted, it should be no longer than 3 business days, from November 5, 2025 to November 10, 2025, which is more than adequate to prepare and file the letter and will allow Mr. Lindeman to provide his input when he returns to the office on November 5, 2025. The Plaintiffs thank the Court for its courtesy and consideration in this matter. Respectfully submitted, Nicole Lancia Nicole Lancia, Esq. as Plaintiffs' responses (Dkt. #25, 26). Defendants' application is GRANTED. The Court first expresses its dismay at the length of the extension and the fact that it was made so close to the initial deadline. At the same time, however, the Court must receive the most up-to-date articulation of Defendants' position regarding whether pendency orders are necessary to issue pendency payments. Given this, the Court GRANTS Defendants' extension request but notes that no further extensions will be granted. The Clerk of Court is directed to terminate the pending motion at docket entry 24. Dated: November 4, 2025 New York, New York

Free access — add to your briefcase to read the full text and ask questions with AI

LIBERTY ¢ FREEDOM LEGAL GROUP, LTD

November 4, 2025 VIA ECF Hon. Katherine Polk Failla MEMO ENDORSED United States District Judge Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: Davis et al. v. Aviles-Ramos et al., 25-cv-07555 (KPF) Dear Judge Failla: Plaintiffs write in opposition to Defendants’ letter-motion for an extension of time until November 14, 2025, to submit a letter to this Court regarding DOE’s position on whether it may withhold pendency payments until a pendency order has been issued. As an initial matter, Defendants did not contact Plaintiffs’ counsel or seek our position on Defendants’ request for an extension of time, as required by Your Honor’s Individual Rules, 2.C. Moreover, on October 29, 2025, Your Honor asked counsel for DOE about its position on whether a pendency order is necessary before DOE can issue pendency payments. Counsel Rubini conferred with co-counsel and stated, “Generally it is DOE’s position that there is no obligation to pay pendency if there is no pendency order issued.” Transcript of hearing on October 29, 2025, p. 36. Counsel also offered to submit a letter stating what DOE’s position has been with respect to its pendency payments, in the context of its objections to our motions for injunctive relief. In essence, DOE now wants an additional 14 days to prepare a letter to the Court explaining DOE’s position as of last week, on October 29, 2025. While it is encouraging that DOE is reconsidering its position in light of Judge Vargas’ recent decision in Crespo, Defendants do not need an extension of time, let alone one lasting 14 days, to put in writing the position that DOE has consistently taken on that issue. Furthermore, Defendants have previously suggested in at least one other matter that DOE need not (and does not) begin the process of issuing payments for a student’s pendency until a pendency order has issued in the underlying administrative proceeding. For example, at a hearing held on September 19, 2025 in Crespo v. Aviles-Ramos (25-cv-7563), the following exchange occurred: MR. MAIELLO: Yes, your Honor. In regard to the second preliminary injunction and implementation, V.P. received his or her final decision this week or only a few days ago. And B.T. also does not have a decision that is ripe when

646-850-5035 | 30 East 33rd Street, 12" Floor, New York, NY 10016 | LibertyFreedom.law

it comes to implementation. THE COURT: We're talking about pendency. So for the moment let's focus on pendency and not the final decision. Why have no pendency payments been made? MR. MAIELLO: The pendency order for V.P. came out only a few days ago. So the payments will be made in the ordinary course of business, which may not be this week, but it will be with decently soon, as compared to this immediate week. And for B.T., no decision has been made when it comes to pendency and – THE COURT: Is DOE challenging it? Plaintiff is correct that it's not required that a pendency order issue. They’re entitled to pendency placement based on the then current placement at the beginning of the school year. So no IHO decision is actually necessary to implement pendency. MR. MAIELLO: I don't disagree, your Honor. However, the payments on it are not due immediately. They’re due in the ordinary course of business. THE COURT: Right. But isn’t the ordinary course taking a long time now? We’re now at the end of September. It sounds as if you haven't even put them in for processing because you're waiting for an order that they're not required to get. . . . . See Transcript of hearing on Sep. 19, 2025, pp. 13-14, an excerpt of which is attached hereto as Exhibit A. Additionally, in several matters, DOE has accused the Liberty and Freedom Legal Group of overzealously representing its clients (and iBRAIN, which is NOT a client) and engaging in sanctionable conduct in its filing of motions for injunctive relief seeking pendency payments. However, as the above-quoted transcripts show, DOE has failed to issue pendency payments (in a remotely timely manner), despite a student’s clear placement being at iBRAIN and even where the student’s pendency placement at iBRAIN is not disputed, unless a pendency order has issued for that student. Now that Judge Vargas issued her decision in Crespo confirming that DOE cannot simply withhold pendency payments where the legal basis for pendency is established by prior SRO decisions during the pendency of administrative proceedings on a parent’s due process complaint, it is clear that DOE’s position contravenes the IDEA and caselaw in this Circuit. See Crespo, 25-cv-7563, ECF No. 48, at 12. Judge Vargas wrote: The thrust of DOE’s argument is that, until it affirmatively agrees to pendency placement at iBRAIN, it has no obligation to implement pendency services based upon the prior SRO decisions. . . . DOE effectively argues that its authority to determine how a student’s then-current educational program is to be provided at public expense during the pendency of proceedings means that it can choose to withhold all payments for a student’s education. See Def. Br. at 5-9. Such a stance is plainly prohibited by the stay-put provision, which obligates DOE to “continue funding” the students’ education. Mendez, 65 F.4th 56, 61 (2d Cir. 2023). Id., pp. 12, 13. Therefore, there is no valid basis for DOE’s continued withholding of pendency payments, nor its conspicuous failure to proffer any reason for the delay in issuing the remaining outstanding payments in this (or any other) matter. In short, Plaintiffs object to Defendants’ letter-motion for an extension of time. Alternatively, if an extension is granted, it should be no longer than 3 business days, from November 5, 2025 to November 10, 2025, which is more than adequate to prepare and file the letter and will allow Mr. Lindeman to provide his input when he returns to the office on November 5, 2025. The Plaintiffs thank the Court for its courtesy and consideration in this matter. Respectfully submitted, Nicole Lancia Nicole Lancia, Esq. as Plaintiffs' responses (Dkt. #25, 26). Defendants' application is GRANTED. The Court first expresses its dismay at the length of the extension and the fact that it was made so close to the initial deadline. At the same time, however, the Court must receive the most up-to-date articulation of Defendants' position regarding whether pendency orders are necessary to issue pendency payments. Given this, the Court GRANTS Defendants' extension request but notes that no further extensions will be granted. The Clerk of Court is directed to terminate the pending motion at docket entry 24. Dated: November 4, 2025 New York, New York

Cite This Page — Counsel Stack

Bluebook (online)

Davis et al. v. Aviles-Ramos et al., Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-et-al-v-aviles-ramos-et-al-nysd-2025.

Opinion

Related

Cite This Page — Counsel Stack