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June 11, 1986


The opinion of the court was delivered by: WEXLER



 Plaintiff Helen Gerasimou brings this action on behalf of her minor twin sons, Michael and Stephan Gerasimou, pursuant to the Education for All Handicapped Children Act ("EAHCA" or "Act"), 20 U.S.C. §§ 1401-1461, and 42 U.S.C. § 1983, against defendants Gordon Ambach, as Commissioner of Education of the State of New York ("Commissioner") and Anthony Alvarado, as Chancellor of the New York City Board of Education ("Chancellor"). Plaintiff seeks reversal of an educational placement decision made pursuant to the EAHCA, changes in the policy and procedures implementing the EAHCA, reimbursement for private school tuition, reimbursement for transportation costs, witness and attorneys fees and costs, and damages stemming from violations of the EAHCA and of the constitutional right to due process.

 The Chancellor and the Commissioner now move to dismiss plaintiff's complaint. Defendants contend that the action is untimely and fails to state claims under either the EAHCA or § 1983. Additionally, the Commissioner argues that the Eleventh Amendment to the United States Constitution bars any award to plaintiff of money damages against the state. U.S. CONST. amend. XI. Plaintiff opposes the motions to dismiss.


 Michael and Stephan Gerasimou are fraternal twins who were born on November 4, 1977. Michael is, for lack of a better term, moderately autistic. While he does not meet the criteria of severe autism established by the American Psychiatric Association, he exhibits classic symptoms of autism that meet the definition of early infantile autism and the Board of Education's broad definition of autism. Stephan, while not affected by the condition to the same extent as his brother, exhibits many of the behavior patterns and deficits of autism.

 From the time of the twins' birth until December 1982, plaintiff and her children resided in Queens County in the City of New York. In 1981, plaintiff enrolled the twins in a Syosset, New York private school Pre-Schoolers Workshop ("PSW"). Pursuant to a Family Court Order, the City of New York paid for the school's tuition. On July 14, 1982, the Committee on the Handicapped ("COH") of Queens District 25, the school district in which the twins resided, issued a formal notice recommending that the children be placed for kindergarten in the program for autistic students at Public School 154 ("P.S. 154") in Queens. The COH made its decision after several meetings with plaintiff and review of the evaluations and recommendations of teachers and psychiatric experts.

 Despite the COH recommendation, plaintiff enrolled her children in the Syosset private school PSW for the 1982-83 school year and challenged the COH's placement, contending that the fragility of her sons' conditions would cause them to suffer trauma and significant regression if their educational setting were changed. *fn1" Hearings before an impartial hearing officer were held during the fall of 1982, and in early December 1982, the hearing officer rendered decisions upholding the COH recommendation and denying plaintiff's application for tuition reimbursement and damages. In the Matter of the Appeal of the Recommendation of the Sub-Committee of the Committee on the Handicapped by his parent for Stefan [sic] Gerasimou (Impartial Hearing Officer Harry Weintraub, Dec. 1, 1982); In the Matter of the Appeal of the Recommendation of the Sub-Committee of the Committee on the Handicapped by his parent for Michael Gerasimou (Impartial Hearing Officer Harry Weintraub, Dec. 2, 1982).

 Shortly after the hearing officer's decision, plaintiff purchased a house in Great Neck, New York. Plaintiff moved to Great Neck in the hope that the board of education there would be more willing to accommodate her sons' needs.

 Plaintiff meanwhile appealed the hearing officer's ruling to the Commissioner. In a decision dated February 11, 1983, the Commissioner held that the issue of placement was mooted by the plaintiff's change of residence and denied the request for tuition reimbursement and compensatory damages. In the Matter of the Application of Two Handicapped Children, by Their Parent, for Review of a Determination of a Hearing Officer Relating to the Provision of Educational Services by the City School District of the City of New York, (New York State Education Commission, Feb. 11, 1983). Plaintiff's attorney received a copy of the decision on February 17, 1983. On June 14, 1983, plaintiff filed the action now before the Court.


 Defendants contend that plaintiff's suit was not filed in timely fashion and therefore must be dismissed. As the EAHCA does not contain a statute of limitations, one must be borrowed from an analogous state law provision. Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 483-84, 100 S. Ct. 1790, 1794-95, 64 L. Ed. 2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S. Ct. 1716, 1721, 44 L. Ed. 2d 295 (1975). The defendants argue that review by a federal court under § 1415(e)(2) of the EAHCA, 20 U.S.C. § 1415(e)(2), is analogous to Article 78 proceedings in New York's state courts, N.Y. Civ. Prac. Law §§ 7801-7806, which are governed by the four-month statute of limitations contained in N.Y. Civ. Prac. Law § 217. Plaintiff asserts that N.Y. Civ. Prac. Law § 214(2)'s three year statute of limitations, applicable to § 1983 actions, Pauk v. Board of Trustees of the City University of New York, 654 F.2d 856 (2d Cir. 1981), cert. denied, 455 U.S. 1000, 102 S. Ct. 1631, 71 L. Ed. 2d 866 (1982), should govern this case.

 In Quackenbush v. Johnson City School District, 716 F.2d 141 (2d Cir. 1983), cert. denied, 465 U.S. 1071, 104 S. Ct. 1426, 79 L. Ed. 2d 750 (1984), the Second Circuit squarely addressed the applicability of § 1983 to claims under the EAHCA, and concluded that Congress intended § 1415(e)(2) to be an exclusive remedy, which can neither be supplemented nor replaced by claims under § 1983. The Second Circuit held that when state administrative processes have run their course, concluding :n findings and a decision, a cause of action under § 1983 is not available. See also Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984); Bonar v. Ambach, 771 F.2d 14 (2d Cir. 1985); Council for the Hearing Impaired Long Island, Inc. v. Ambach, 610 F. Supp. 1051 (E.D.N.Y. 1985).

 It is true that, when considering the specific situation presented by Quackenbush, the Second Circuit carved out an exception to the general rule it itself had laid down. Official misconduct had deprived Quackenbush of the administrative review provided by the EAHCA; the plaintiff therefore had not technically been aggrieved by administrative findings and decisions from which she could seek judicial review under § 1415(e)(2). The Quackenbush court decided that, in the absence of an ...

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