Donus ex rel. Donus v. Garden City Union Free School District

987 F. Supp. 2d 218, 2013 WL 6571089, 2013 U.S. Dist. LEXIS 176089
CourtDistrict Court, E.D. New York
DecidedDecember 12, 2013
DocketNo. CV 13-0479
StatusPublished
Cited by1 cases

This text of 987 F. Supp. 2d 218 (Donus ex rel. Donus v. Garden City Union Free School District) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donus ex rel. Donus v. Garden City Union Free School District, 987 F. Supp. 2d 218, 2013 WL 6571089, 2013 U.S. Dist. LEXIS 176089 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

WEXLER, District Judge:

Before the Court is the Defendants’ motion for a judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), seeking to dismiss this action in its entirety on the grounds that the Court lacks subject matter jurisdiction over the claims and that Plaintiffs claims are barred by the applicable statutes of limitation. In the event that the Court does not grant Defendants’ motion for a judgment on the pleadings, Defendants request that the Plaintiffs’ claims be severed into separate and distinct actions, pursuant to Federal Rule of Civil Procedure 21. Plaintiffs oppose the motion.

BACKGROUND

Plaintiffs are all parents of disabled children who attend or attended school in the Garden City Union Free School District (the “District”), which is overseen by the Board of Education of the Garden City Union Free School District (the “Board”) (collectively, “Defendants”). The following facts are taken from the Plaintiffs’ Amended Complaint, filed on June 5, 2013.

A. Dayna Stropkay

At eight months old, Dayna Stropkay (“Dayna”) was diagnosed as having cerebral palsy. (Am. Compl. ¶ 20.) When Dayna was seven years old, however, this diagnosis was changed to bilateral closed lip schizencephaly. (Id.) Dayna’s condition renders her, for the most part, non-ambulatory, such that she uses a power wheelchair and can walk only very short distances with a walker. (Id.) Dayna also has visual and oral apraxia1 and can only use her left hand.2 (Id.) As a result of her condition, Dayna used assistive technology while enrolled in school, and required assistance with using the bathroom. (Id. ¶ 21.)

Dayna began school in the Defendant District in 1998, at which time she was in the first grade. (Id. ¶-22.) In 2004, Dayna’s mother, Plaintiff Denise Stropkay (“Stopkay”), requested that Dayna be evaluated because the District insisted that Dayna could not perform Regents-level work, which Dayna felt she was able to do. (Id. ¶ 23.) The evaluations revealed that Dayna had a visual tracking problem and [222]*222that her assistive technology was not supporting her need. (Id. ¶ 24.) As a result, Dayna was provided with a Mercury computer for her school work and a Kurzweil reader to assist with her visual tracking. (Id.)

In 2005, during the eighth grade, Dayna was transferred from an inclusion classroom to self-contained special education classes intended for students on track for a Regents diploma. (Id. ¶ 25.) During that school year, the District’s Assistive Technology Consultant, Lorainne Henniger (“Henniger”), asked Stropkay whether she knew that Dayna was unable to read and advised Stropkay that she thought Dayna may be dyslexic. (Id. ¶26.) Stropkay requested remediation from the District, but the District refused, stating that Dayna was already receiving appropriate remediation in the special education classroom. (Id.) Dayna did not receive the requested remediation specific to reading until May of the eighth grade. (Id.)

In 2006, while Dayna was in ninth grade, she failed the Math Regents Competency Test (“RCT”). (Id. ¶ 27.) She was nonetheless advanced to the next level math class. (Id.) In January 2008, Dayna took the Math RCT again and failed for a second time. (Id.) As a result, Stropkay requested numerous accommodations and additional help for Dayna, all of which were denied by the District. (Id. ¶¶ 28-29.) Moreover, when Henniger spoke in favor of Dayna receiving Academic Intervention Services (“AIS”),3 Defendants advised her to “be quiet.” (Id. ¶ 29.) Defendants never offered Dayna AIS or even informed Stropkay that such services existed. (Id. ¶ 39.)

In June 2008, Dayna was scheduled to take the RCT exams in math, science and social studies, as well as the social studies regents exam. (Id. ¶ 30.) At the beginning of the school year, it was agreed that language would be installed on Dayna’s Mercury computer to assist her with the vocabulary for each of the courses. (Id. ¶ 31.) However, the language was never installed; nor was Dayna provided with review work for writing exam essays or given any help practicing Document Based Questions. (Id. ¶¶ 31-32.) As a result, Dayna failed all of the RCTs. (Id. ¶ 33.)

On September 10, 2008, Stropkay contacted the NYSED and was advised that since Dayna failed the RCTs and other exams, she should have been provided with AIS. (Id. ¶ 38.) Despite the fact that AIS were offered every other day by the District as of September 2008, neither Dayna nor several other students with disabilities who qualified for the program were offered the services. (Id. ¶ 40.) As a result of the District’s failure to provide Dayna with AIS, Stropkay contacted the NYSED again and complained. (Id. ¶ 41.)

In or around the same time, the District’s Committee on Special Education (“CSE”) urged that Dayna be downgraded from a Local Diploma track to an Individualized Education Program (“IEP”) Diploma track.4 (Id. ¶ 37.) On October 10, 2008, Stropkay received a letter advising that a CSE meeting was being convened to review Dayna’s educational program. (Id. ¶ 43.) During the CSE meeting, several teachers expressed that Dayna could not perform the work required for a Local Diploma. (Id.) As a result, the CSE rec[223]*223ommended transferring Dayna to an IEP Diploma track, while keeping her in the same classes. (Id. ¶ 44.) Stropkay refused to agree to the transfer. (Id. ¶ 48.)

Thereafter, in January 2009, Defendants falsely accused Dayna of being incontinent. (Id. ¶ 69.) The false accusations continued for months, occurring on almost a daily basis. (Id. ¶¶ 65-96, 109-11, 124-27.)

Defendants also attempted to prevent Dayna from attending field trips with her classmates. (Id. ¶¶ 52-53, 97, 136-39.) Specifically, in March 2009, Dayna’s school planned a field trip to the Brooklyn Academy of Music, traveling via the Long Island Railroad. (Id. ¶ 52.) Defendants informed Dayna that she could not go on the field trip with the rest of her classmates, but would instead have to travel on a small handicap accessible school bus, accompanied by an aide. (Id. ¶ 53, 97.) When Dayna arrived at the Brooklyn Academy of Music, she was not permitted to meet up with the rest of her class and was forced to leave early. (Id. ¶ 97.)

On February 9, 2009, Dayna was downgraded to an IEP Diploma. (Id. ¶ 82.) As a result, Dayna was no longer provided any AIS and was instead placed into life skills. (Id.) In June 2009, Stropkay and Dayna entered into mediation with Defendants in an effort to have Dayna transferred back to a Local Diploma; however, Defendants refused. (Id. ¶ 131.)

In September 2009, Dayna left the District and was placed at the Henry Yiscardi School, where she remained until her graduation. (Id.

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Related

Stropkay v. Garden City Union Free School District
593 F. App'x 37 (Second Circuit, 2014)

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Bluebook (online)
987 F. Supp. 2d 218, 2013 WL 6571089, 2013 U.S. Dist. LEXIS 176089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donus-ex-rel-donus-v-garden-city-union-free-school-district-nyed-2013.