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D.A.B. v. New York City Dep't of Educ.

United States District Court, S.D. New York

September 23, 2014

D.A.B. AND M.B., INDIVIDUALLY AND ON BEHALF OF D.B., Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant

Decided September 22, 2014

Page 401

For D.A.B., individually and collectively and on behalf of D.B., M.B., individually and collectively and on behalf of D.B., Plaintiffs: Gregory Cangiano, Jesse Cole Cutler, Skyer, Castro, Foley & Gersten, New York, NY.

For New York City Department of Education, Defendant: Elizabeth Sheehan Edmonds, LEAD ATTORNEY, Nyc Law Department, New York, NY.

Page 402

OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiffs, D.A.B. and M.B., bring this action on behalf of their son, D.B., pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973 (" Section 504" ), 29 U.S.C. § 794 et seq., and New York Education Law § 4401 et seq., against the New York City Department of Education (" the Department" ). In an earlier decision, this Court granted summary judgment for the defendant dismissing the plaintiffs' challenge to the decision of the State Review Officer (" SRO" ), leaving undisturbed the SRO's decision that the Department had offered D.B. a " free and appropriate education" (" FAPE" ) for the 2010-2011 school year. D.A.B. v. New York City Dep't of Educ., 973 F.Supp.2d 344, 363 (S.D.N.Y. 2013). The parties have now cross-moved for summary judgment on the plaintiffs' Section 504 claim, which was not argued by the parties at the time of the earlier decision.

For the reasons explained below, the plaintiffs' Section 504 claim is dismissed without prejudice for lack of subject matter jurisdiction.

I.

The Court has already set forth the facts and procedural background of this case in its prior opinion, familiarity with which is assumed. See id. at 351-358. The following facts, taken from the administrative record and the submissions of the parties, are set forth because of their relevance to the Section 504 claim. The facts are undisputed unless otherwise noted.

A.

D.A.B. and M.B. are the parents of D.B., a child classified with autism and apraxia of speech.[1] (SRO Op. at 2; Tr. 780.) D.B. was approximately six years old at the time of the 2010-2011 school year at issue in this case. (Independent Hearing Officer (" IHO" ) Op. at 4; Ex. 1 (" IEP" ) at 1.)

Consistent with New York State Public Health Law, the Department requires that all students be vaccinated before attending school, subject to certain exceptions. N.Y. Pub. Health Law § 2164; (see Edmonds Decl. ¶ 2, Ex. 1.) Parents that do not want their children to be vaccinated due to medical concerns may request an exemption by submitting a statement from a New York

Page 403

State physician. N.Y. Pub. Health Law ยง 2164(8); (see Edmonds ...


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