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ARONS v. STATE OF NEW YORK

May 19, 2004.

MARILYN ARONS, Plaintiff
v.
STATE OF NEW YORK, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, COMMISSION ON QUALITY OF CARE, METROPOLITAN PARENT CENTER OF SINERGIA, INC., DONALD LASH, FAMILY ADVOCATES, INC., ROSALEE CHARPENTIER, Defendants



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

Plaintiff pro se Marilyn Arons ("Arons") filed this action on January 5, 2004, against the State of New York, Office of Mental Retardation and Developmental Disabilities*fn1 ("OMRDD") and the Commission on Quality of Care*fn2 ("CQC") (collectively, "the State"), the Metropolitan Parent Center of Sinergia, Inc.*fn3 and its Executive Director, Donald Lash (collectively, "Sinergia"), and Family Advocates, Inc.*fn4 and its Executive Director, RosaLee Charpentier ("Charpentier") (collectively, "Family Advocates"). In her complaint, Arons alleges violations of 42 U.S.C. § 1983 ("Section 1983"), the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 6042 ("Section 6042"),*fn5 the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), and various state laws.

  The State, Sinergia and Family Advocates now separately move to dismiss the complaint. For the reasons stated below, the motions are granted.

 Background

  Unless otherwise indicated, the facts describing the background to this litigation are taken from the complaint and plaintiff's submissions in opposition to this motion. Arons, the mother of two handicapped children and a New Jersey resident, has been described in connection with other litigation she has filed as "a professional educator . . . [who] specializes in curriculum development for exceptional children," and as "a lay advocate [who] acts on behalf of parents of handicapped children at administrative hearings" conducted pursuant to the IDEA. Arons v. New Jersey State Board of Education, 842 F.2d 58, 60 (3d Cir. 1988). Under the IDEA'S fee-shifting provisions, parents who prevail in a IDEA suit can apply to the federal district court for an award of attorneys' fees for the "costs" of the litigation. 20 U.S.C. § 1415 (i)(1)(3) (b). There is precedent for the proposition that those costs may include fees for experts such as Arons. See, e.g., Murphy v. Arlington Central School Dist. Bd. of Educ., No. 99 Civ. 9294 (CHS), 2003 WL 21694398, at *8-9 (S.D.N.Y. July 22, 2003). Accordingly, although Arons is precluded from charging fees in connection with her representation of parents at hearings, she contends that she is entitled to bill for her services as a consultant and expert. See also In Re Arons, 756 A.2d 867, 868 (Del. 2000) (Delaware's prohibition on lay advocate representation at due process hearings not preempted by the IDEA).

 Sinergia Dispute

  In January 2000, Elizabeth Batchelder ("Batchelder"), the parent of a disabled child, contracted with Arons on a contingency basis to assist in an IDEA lawsuit against the City of New York. Pursuant to a contract drafted by Arons, Batchelder agreed "to seek the fees of Mrs. Arons through an application to the federal courts" in the event Batchelder prevailed at the administrative hearing. Batchelder prevailed, but did not institute an action in federal court. Arons requested that Batchelder consult with an attorney regarding the procedure for instituting an action for her fees. In an email dated February 13, 2002, Batchelder informed Arons that she had been advised by an attorney that she did not "have the right to recover [Arons's] fees in Federal Court" because Arons had not worked under the supervision of counsel. The attorney had informed Batchelder that "the procedure to recover non-attorney fees is through the school district" via the administrative hearing. Batchelder told Arons that she had reasonably relied on Arons's "knowledge of the system" and that Arons had never informed Batchelder to seek her fees at the hearing. Batchelder disputed Arons's accusation that she had "refused to recover" Arons's fees.

  On March 4, 2002, Arons filed a complaint in the Civil Court of the City of New York against Batchelder, alleging breach of contract. Arons sought monetary damages and an order compelling Batchelder to institute the federal action so that Arons could be paid for her services. Batchelder filed an answer to Arons's complaint pro se, and thereafter retained Sinergia to defend the case. Sinergia filed a cross-motion to dismiss, which was denied. Thereafter, on October 21, 2003, Arons and Batchelder entered into a court-ordered stipulation whereby Arons agreed to accept $1,000 in exchange for her services on behalf of Batchelder.

 Family Advocates Dispute

  Arons's claims against Family Advocates also stem from the law firm's alleged interference with a contractual relationship between Arons and a former client. Thomas and Barbara Mackey (the "Mackeys"), parents of a disabled son, entered into an oral agreement with Arons to assist them with their IDEA lawsuit against the Arlington Central School District ("Arlington"). The Mackeys agreed to pursue Arons's fees in federal court if their suit was successful. After the Mackeys lost at the initial administrative level, Arons and the Mackeys severed their relationship. In October 2000, the Mackeys retained Family Advocates to prepare and submit a petition challenging the unfavorable administrative decision. The appeal was successful and the Mackeys were granted their requested relief.*fn6

  Family Advocates asked the Mackeys to submit itemized bills for the various individuals who had testified at the hearings on their behalf. In a letter dated July 19, 2002, the Mackeys asked Arons to forward them an itemized bill for her services, and informed her that Charpentier, the Executive Director at Family Advocates, "will be submitting all bills from the people who have assisted us . . . when we are finished at the Federal level, provided we prevail." On October 18, Arons submitted her bill to the Mackeys in the amount of $20,050. Having not heard from the Mackeys by early December, Arons served them with notice of her intent to sue for breach of contract.

  On February 11, 2003, Arons received a letter from Charpentier stating that she would not represent Arons "in any aspect of an action for fees in this matter. . . . You are free to retain your own counsel." On February 28, Arons filed a state court action against Charpentier and the Mackeys for breach of contract and for an injunction compelling them to seek Arons's consultation fees in federal court. According to Arons, Charpentier was named in that action "because of her interference with the oral contract," among other reasons. In the fall of 2003, the Mackeys filed for bankruptcy. Arons's bill is listed as a debt and a loan in the Mackey bankruptcy action.*fn7 Family Advocates do not represent the Mackeys in that proceeding.

  Arons alleges that the State, Sinergia, and Family Advocates have "engaged in harassment and systemic action to conspire against plaintiff, a nonlawyer [sic], because she is permitted to charge parents for her services relating to representation in special education due process hearings." According to Arons, Sinergia and Family Advocates misused federal funds doled out by the State in order to conduct frivolous and malicious litigation against Arons in order to deprive her of her legal right to collect "consultation fees" pursuant to the IDEA. Arons also charges the State with violating the IDEA'S "Protection and Advocacy mandate" for the developmentally disabled by, inter alia, failing to provide free or low cost legal services to parents of disabled children, failing to develop "state-of-the-art, cutting edge policies" in special education, and for being complicit in Family Advocates and Sinergia's use of public funds to file "malicious and libelous action[s] and frivolous litigation" against Arons.

  Arons seeks (1) sanctions against Sinergia and Family Advocates for the "inappropriate use of federal funds and unethical behavior"; (2) an order compelling Sinergia and Family Advocates to pay Arons the balance of the bill allegedly owed by Batchelder and the Mackeys, respectively; (3) a series of orders against the State, with the intent of "restructuring New York's protection and advocacy system," and compelling the "recognition of and payment for those with special ...


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