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January 29, 1994

PETER and ROBERTA STELLATO, on behalf of their handicapped child, REBECCA, Plaintiffs,

The opinion of the court was delivered by: THOMAS J. MCAVOY

 This is an action commenced pursuant to the Individuals with Disabilities Education Act (IDEA), as amended, 20 U.S.C. § 1400 et seq. The IDEA creates a comprehensive scheme for assuring that handicapped children receive a "free appropriate public education." 20 U.S.C. § 1401(18). The statute requires states to set up due process procedures to ensure that children with disabilities obtain the education to which they are entitled.

 Article 89 of the New York Education Law § 4401 et seq. and 8 N.Y.C.R.R. part 200, were adopted, in part, to comply with the State's obligations under the IDEA. New York's procedures provide that committees on special education (CSE) at the local school district, identify, review and evaluate the status of each handicapped child in the school district and make recommendations to the child's classification and placement. Education Law § 4402; 8 N.Y.C.R.R. 200.2, 200.3, 200.4.

 Initially, New York law provided that appeals from determinations of impartial hearing officers were decided by the New York State Commissioner of Education. As of July 1, 1990, an appeal from a final determination of the impartial hearing officer must be taken to the State Review Officer. This change in procedure occurred as a result of the Federal Secretary of Education's insistence that the state plan be changed to remove any persons with educational policy functions from the appeal review process. This change was intended to assure neutrality in appellate reviews. The IDEA provides that either party may appeal a final decision of the State Review Officer by bringing an action in state or federal court.

 The instant lawsuit does not concern itself with any substantive issue regarding the placement or classification of Rebecca, but, instead, the lawsuit addresses the issue of whether the school district intentionally delayed with Rebecca's required triennial evaluation *fn1" scheduled at the Yale Child Study Center (Yale) located in Connecticut.

 It must be noted that the appropriateness of Yale as the evaluation site was addressed in an impartial hearing on April 3, 1991. The impartial hearing officer determined that the school district had a right to have the evaluation done at Yale. Plaintiffs never appealed this determination to the State Review Officer.

 A second impartial hearing, which is the genesis of this litigation, was held on April 30 and June 26, 1992, regarding plaintiffs' allegation that the school district unduly delayed Rebecca's evaluation process at Yale. This hearing is wholly separate from the first hearing. In the second hearing, the impartial hearing officer determined that the school district did not intentionally delay the evaluation process, and this determination was later affirmed by the State Review Officer. The plaintiffs, aggrieved by this decision, filed the instant lawsuit on or about February 19, 1993.

 It should be noted that a triennial evaluation was finally done on Rebecca a little over a month after the plaintiffs filed the instant complaint. The evaluation was done at Newington Children's Hospital, and plaintiffs are presently challenging this evaluation as being inadequate and also challenging the school district's recommendation as being inappropriate -- there is a pending impartial hearing. The Newington's evaluation is not part of this litigation, however.

 Both defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56.


 Rule 56(c) provides that the court may grant summary judgment where there are no genuine issues of material fact for trial. Fed.R.Civ.P. 56(c). If there are no genuine issues, the movant is entitled to judgment as a matter of law. When the movant meets this standard, the-opposing party must present sufficient facts to demonstrate that there exists some genuine issues of material fact in order to defeat the movant's motion for summary judgment. An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The court must view the evidence in light most favorable to the party opposing the motion. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987).

 When the opposing party bears the ultimate burden of proof on a particular issue, such party may defeat a properly supported summary judgment motion by producing specific facts which demonstrate a genuine issue of material fact on that issue. See Montana v. First Federal Savings and Loan Assoc. of Rochester, 869 F.2d 100, 103 (2d Cir. 1989); see also Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Here, plaintiff bears the ultimate burden of proof.

 The State Review Officer has moved to dismiss the complaint contending that he is not a proper party defendant in the instant lawsuit. The plaintiffs, in their "Reply Affidavit," *fn2" have agreed to dismiss the State Review Officer ...

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