The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Daryl Butler ("Butler" or "Plaintiff") commenced the
instant action pursuant to the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400-1487; § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983;
the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213
; and the Family Educational Rights and Privacy Act
("FERPA"), 20 U.S.C. § 1232g, claiming that the defendants failed
to provide him with an appropriate public education and
discriminated against him based upon his disability. The
plaintiff has also asserted various state law claims. Butler
seeks an award of compensatory education, reimbursement for
tuition and related services, as well as compensatory and
The defendants have moved for summary judgment pursuant to
Fed.R.Civ.P. 56.*fn1 Oral argument was heard on February 18,
2000, in Albany, New York. Decision was reserved.
Butler entered South Glens Falls Junior High School in 1990.
Prior to enrolling in the South Glens Falls Central School
District ("District"), he attended Lake George School District,
where he was classified as a special education/emotionally
disturbed student and an individualized education program ("IEP")
was developed for him. This IEP was maintained upon entering
South Glens Falls Junior High School.
In January 1991, Butler was declassified and no longer received
special education services. He continued to have behavior and
attendance problems and failed several courses. In June 1993,
plaintiff was evaluated for possible learning disabilities. He
tested in the average IQ range, but was diagnosed with Attention
Deficit Hyperactivity Disorder. In September 1993, he stopped
attending high school after a dispute with the school principal
regarding parking privileges and the school nurse about taking
On January 9, 1995, the hearing officer determined that it was
error to declassify Butler in 1991 because the evidence "clearly
shows Daryl as a child with behavioral control and educational
problems that had been evident and observable for several years.
. . ." (Baker Aff. Ex. 1.) The hearing officer also noted that
after he was declassified, the District made no attempt to
provide him with regular counseling and the counselor assigned to
him never met with him. The hearing officer further found that
the IEP developed in June 1994 contained several inadequacies. He
recommended classifying plaintiff as "Other Health Impaired,"
Id., and develop an IEP which includes tutoring and counseling.
Neither plaintiff nor his mother appealed this determination.
The CSE met in May 1995 to develop another IEP. At this time,
it recommended home tutoring for the summer to allow Butler to
adjust to the academic setting for the fall. Butler's mother
would not consent to this IEP. Nor would she consent to two other
IEP's which the District developed in November 1995 and June
1996. Instead, she enrolled plaintiff in a home school program
through the Clonlara School ("Clonlara"). The district requested
a hearing regarding her course of action.
On February 27, 1997, the hearing officer determined that,
after the first hearing determination, the District attempted to
provide Butler with an appropriate education and developed IEP's
in May 1995, November 1995, and June 1996 which were appropriate
for Butler's educational needs. The hearing officer denied Mrs.
Askew's demand for tuition reimbursement because she did not show
that Clonlara was an adequate and appropriate school. The
District was directed to implement its June 1996 IEP and provide
Butler with home tutoring until he obtained a GED or for 18
months, whichever was sooner. Mrs. Askew appealed this decision
to the State Reviewing Officer ("SRO").
On November 4, 1997, the SRO found that the 1995-1996 and
1996-1997 IEP's were inappropriate, however, affirmed the
decision not to award tuition reimbursement or reimbursement for
related services and materials. Plaintiff then commenced this
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.
1991). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving
party "must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby Inc.,
477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment
motion, evidence must exist
upon which a reasonable jury could return a verdict for the
nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S.Ct.
2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct.
1348. Thus, summary judgment is proper where there is "little or
no evidence . . . in support of the non-moving party's case."
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24
(2d Cir. 1994) (citations omitted).
B. Statute of Limitations
The defendants argue that plaintiff's IDEA claims are barred by
the statute of limitations. Since IDEA does not provide for a
statute of limitations, federal courts must apply the statute of
limitations applicable to the most analogous state cause of
action. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85
L.Ed.2d 254 (1985). The Second Circuit has determined that an
action under § 1415 of the IDEA appealing an administrative
proceeding is analogous to an Article 78 proceeding and
therefore, the four month statute of limitations applicable to
Article 78 proceedings*fn2 applies to such actions. See Adler
v. Education Dep't of New York, 760 F.2d 454, 457 (2d Cir.
1985); see also Heldman v. Sobol, 962 F.2d 148, 158 n. 10 (2d
Cir. 1992) (holding that the four month statute of limitations
applies if the complaint "constituted an appeal from the
Commissioner's decision"). However, a three year ...