B.J.S., on behalf of N.S., a child with a disability, Plaintiff,
The State Education Department/The University of the State of New York, Paul R. Kelly, State Review Officer, Richard P. Mills, Commissioner of Education, and Springville-Griffith Institute Central School District Board of Education, Defendants.
FRANK T. HOUSH, ESQ., Buffalo, New York, Attorney for Plaintiff.
HODSGON RUSS, LLP, RYAN L. EVERHART, of Counsel The Guaranty Building, Buffalo, New York, Attorneys for Defendant School District.
REPORT and RECOMMENDATION
LESLIE G. FOSCHIO, Magistrate Judge.
This action was referred to the undersigned by Honorable Richard J. Arcara on September 10, 2009, for all pretrial matters. The case is presently before the court on Defendant School District's motion for summary judgment (Doc. No. 117), filed February 13, 2012.
BACKGROUND and FACTS
Plaintiff B.J.S. ("Plaintiff" or "B.J.S."), commenced this action on July 13, 2007, by filing a complaint alleging on behalf of herself and her child, N.S. ("N.S."), then enrolled in Defendant Springville-Griffith Institute Central School District ("the School District"), that Defendants New York State Department of Education ("NYSED"), NYSED Commissioner Richard P. Mills ("Commissioner Mills" or "Mills"), NYSED appointed State Review Officer ("SRO") Paul F. Kelly ("SRO Kelly" or "Kelly") (together, "State Defendants"), and the School District, denied N.S. a free and appropriate public education ("FAPE"), for the 2005-2006 school year for N.S.'s 6th grade, in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("the IDEA" or "the Act"). Plaintiff in this action specifically seeks to have annulled the March 17, 2007 decision rendered by SRO Kelly ("SRO Decision"), overruling the decision rendered on December 17, 2006, and amended on December 28, 2006, by the School District's appointed Impartial Hearing Officer ("IHO") James P. Walsh ("IHO Walsh" or "Walsh"), a nonparty to this action ("IHO Decision"). In contrast to the SRO Decision, the IHO Decision was favorable to Plaintiff.
During the 2002-2003 school year, N.S. was first determined by the School District's Committee on Special Education ("CSE") to be autistic and, thus, a student in need of special education and related services. Accordingly, the CSE, as required by the IDEA, developed an individualized education program ("IEP") which, if correctly followed, would provide N.S. with the FAPE mandated by the IDEA. During the 2002-2003 school year, the IEP pursuant to which N.S. was educated by the School District, allowed N.S. to make substantial progress in all academic and social areas. N.S. thereafter continued to be educated pursuant to an IEP which was modified each year to account for changes in N.S.'s educational needs.
Prior to the commencement of the 2005-2006 school year, Plaintiff disagreed with the IEP prepared by the CSE for the 2005-2006 school year. Without the new IEP in place at the beginning of the 2005-2006 school year, the School District maintained N.S. in his pendency placement such that N.S. continued to be educated during the 2005-2006 school year pursuant to a "Pendency Plan, " defined as the most recently agreed upon IEP, specifically, the IEP for the 2003-2004 school year.
On April 4, 2006, with no 2005-2006 IEP yet in place for N.S., Plaintiff filed a complaint with the School District challenging the proposed 2005-2006 IEP and requesting an administrative due process hearing before an Impartial Hearing Officer ("IHO"). The School District appointed as IHO James P. Walsh ("Walsh" or "IHO Walsh") to preside over the hearing which commenced on April 4, 2006, and continued for nine days over the next five months, and remained pending at the start of the 2006-2007 school year. It is undisputed that N.S. never received any services or instruction pursuant to the 2005-2006 IEP; rather, throughout the entire 2005-2006 school year, N.S. was educated pursuant to the 2003-2004 IEP.
On December 17, 2006, IHO Walsh issued his decision, ruling the School District failed to comply with the IDEA. The School District appealed the IHO Decision to the Office of State Review where State Review Officer ("SRO") Paul R. Kelly ("Kelly" or "SRO Kelly") issued his decision, Appeal No. 07-007, on March 19, 2007. The SRO Decision determined the School District provided a FAPE to N.S. for the 2005-2006 school year and annulled the IHO Decision. Plaintiff then commenced the instant action seeking to reverse the SRO Decision.
In a Report and Recommendation filed by the undersigned on August 11, 2011 (Doc. No. 96) ("R&R"), dismissal of all claims asserted against State Defendants was recommended. The R&R was adopted by Judge Arcara on September 30, 2011 (Doc. No. 104). As such, this action continues against only the School District ("Defendant").
On February 13, 2012, Defendant filed the instant motion for summary judgment (Doc. No. 117) ("Defendant's motion"), supported by the Memorandum of Law in Support of Defendant's Motion for Summary Judgment (Doc. No. 114) ("Defendant's Memorandum"), Defendant's Statement of Undisputed Facts Pursuant to Local Rule 56.1 (Doc. No. 115) ("Defendant's Statement of Facts"), and the Declaration of Ryan L. Everhart, Esq., in Support of Defendant Springville-Griffith Institute Central School District Board of Education's Motion for Summary Judgment (Doc. No. 116) ("Everhart Declaration"). Defendant maintains that "[t]hroughout the entire 2005-2006 school year, and up to the present date, N.S. has remained in a pendency program, " Defendant's Statement of Facts § 12; and that "N.S. is currently poised to graduate from high school this spring...." Defendant's Memorandum at 10 (italics in original).
By letter to the undersigned filed May 3, 2012, Plaintiff's attorney, Frank T. Housh, Esq. ("Housh") ("Housh Letter"), explained that "responding [in opposition to summary judgment] has not been possible" based on his inability "to acquire useful contact" with Plaintiff, who had requested to "participate in the preparation of all legal proceedings." Despite extending, on May 3, 2012, Plaintiff's time to file her ...