- NEW YORK.

COUNTY
COURTOF THE STATEOF NEWYORK
SUPRETúE
PARr 3{
PRESENT ITTTERAT
ORDER
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PAPERSNUMEERED

- Exhlblts "'
Cau¡e - Affldavlt¡
Notlceof MotlonÅOrderto Show
- Eihlblts
, AnawedngAffidavits

ø ReplylngAffidavlt¡
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Ø Cross'Motion:
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papers' ls thtt thtsmotion
ordered ':
Upontirefbregolng
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iâq MemorandumDecision,it is hereby
with the accompanying
In accordance
, o
c, lL ORDERED that the application of petitionersVeronica Montgornery-Costa,as
l- ¡¡¡
o F Presidentof Local 372,District Council'37,AFSCME, AFL-CIO, SheanicaDavis, as a
u¡ l- isplacedSchoolAide and Parentof school-agedchildren,Marilyn Rosado,JeanetteSoto,
s¡ryrsvvs
CÉ ¡t
ïiî o KumarSingh,AustinNichols,ClairicineLiriano,FannyMoscoso,Myra Munoz,.LuisPadilla,
Et¡. berto Guzman, Edward Perez,(on behalf of themselvesand others similarly situated),to the
. l¡¡
É t that theyseeka preliminaryinjunction,is granted.Saidinjunctionshallremainin
J until this Courtmakesa furtherdetermination on the cross-motionto dismissof
-t pondentsthe City of New York, MichaelR. Bloomberg,as Mayor of the City of New York,
:l
TL
t- Boardof Educationof the City SchoolDistrict of the City of New York, dbathe
o partmentof Education,JoelI. Klein, asChancellor of the City SchoolDistrictof theCityof
l¡¡
È ew York, SchoolProfessionals Agency,andJamesA. EsseyasPresident andCEOof
C!,
l¡¡ ProfessionalsAgency;andit is further
É
ORDEREDthat petitionersshallposta bondno latet'thancloseof businesson
I tober28, 2009,in the amountof $779,000.00, representing the potentiallossto theDOE
l¡¡
g, m October16,2009until November4, .2009,thedatetherespondents' cross-motion shq[l
o decided. - . / o z Ç(X n
z This constitutesthe Interim Decisionand Order of the Court. A -)¿7\
I Dated: /r';--fu7, ' ¿s._G-
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o HON.9AKw'-
=, DISPOSITION
T FINALDISPOSITION wouiElNAL
- :. I REFERENCE
if aPProPriate: [J DO NOT POST
Check.
SUPREMECOURTOF THE STATEOF NEW YORK
COUNTY OF NEV/ YORK: PART35
------x
In the Matterof theApplicationof

VERONICAMONTGOMERY-COSTA, asPresident of
LOCAL 372,DISTzuCTCOUNCTL 37,AFSCME,AFL-CIO, IndexNo.: 114374-2009
SHEANICADAVIS, asa displacedSchoolAide andParent
of school-aged children,MARILYN ROSADO,JEANETTE
SOTO,KUMAR SINGH,AUSTINNICHOLS,CLAIRICINE
LIRIANO, FANNY MOSCOSO,MYRA MUNOZ,LUIS
PADILLA, ROBERTOGUZMAN, EDWARD PEREZ,
(on behalfof themselves andotherssimilarlysituated),

Petitioners,

For an Order and JudgmentPursuantto Article 78

Of the Civil PracticeLaw and Rules.

-agatnst-

THE CITY OF NEW YORK, MICHAELR. BLOOMBERG,

asMayor of the City of New York, THE BOARD OF
EDUCATIONOF THE CITY SCHOOLDISTRICTOF THE
CITY OF NEW YORK, dbaTHE DEPARTMENTOF
EDUCATION,JOELI. KLEIN, asChancellor of the City
SchoolDistrictof the City of New York,SCHOOL
PROFESSIONALS AGENCY,andJAMESA. ESSEYas
andCEOof SchoolsProfessionals
President Agency, -t-

.T:ï1T:1t......."
HON. CAROLROBINSONEDMEAD,J.S.C.

MEMORANDUM DECISION

In this "hybrid" Article 78 proceedingand plenary action for declaratoryjudgment,

petitioners,comprising"School Aides" in P.S. 375 andI.S. 52 in Manhattan,and the Union

Presidentof United Federationof Teachers,Local 372, AFT, AFL-CIO ("Local 372" or "IJnion")

which representsthem, challengelayoffs of more than 500 SchoolAides by the Board of

Educationof the City School District of the City of New York, dlblathe Departmentof
Education("DOE'), which allegedlyresultedin the creationof a shadowclassof workers

performing civil service work in violation of the New York StateConstitution, Education Law,

and fundamentalprinciples of equity. By orderto show cause,petitionersseek,inter alia,to

enjoin the DOE from laying off theseSchoolAides.'

In grantingthe Interim Stay,this Court consideredit importantthat beforesomeof the

most vulnerableemployeesin the New York City schoolsystemlosetheir jobs, in the midst of

thervorsf econonrywelave seetindecades, the Colrt ensurethat bad faith playeùno part in the

DOE's determinationto lay off approximately500 SchoolAides, and that suchlayoffs did not

violate, inter alia, the New York StateConstitution and EducationLaw 2590.

Further, in granting the stay,this Court consideredthat, if in fact, it is establishedthat the

children in New York City's poorestneighborhoodswould be most adverselyimpactedby the

DOE's determinationto lay off approximately500 SchoolAides, thenthis Court must ensure

that bad faith playedno part in DOE's determinationto lay off theseSchoolAides, and that such

lavoffs did not violate. tnter alia. the New York StateConstitutionand EducationLaw 2590.

Finally, in granting the stay,this Court consideredthat at this point in time when

UniversalHealth Care doesnot exist in this State,and that theselaid-off SchoolAides faceda

loss of healthbenefits,this Court must ensurethat bad faith playedno part in DOE's

determinationto lay off theseSchool,Aides,and that suchlayoffs did not violate,inter alia,the

'
After oral argumenton the issueof whetherthe Court shouldissuethe order to showcause,the Court
issuedan Interim Order, dated October 15,2009, grantinga temporarystay of the effectivedateof the layoffs. This
decisionaddresses whethera preliminary injunctionshouldissue.
On October23,2009, respondentsservedand frled their opposítionto the Order to Show Cause,and cross
moved to dismissthe Petition. This decisiondoesnot addressthe argumentsraisedby the cross-motionsby DOE,
SchoolProfessionals Agency and JamesA. Essey,which seekto dismissthe Petition,to which petitionershad no
opporfunifyto respond. Such issuesare reservedfor further determinationupon further submissionsby petitioners.
 "fe

New York StateConstitution and EducationLaw 2590.

Factual Background

SchoolAides, who have beenrepresented

by Local 372 since1965,do not work inside

the classrooms,but perform duties such as lunch room and school yard duty, locker-room and

lavatory duty, hallway duty, and clerical duties in the main offices at schools.

On May 22,2009, the DOE enteredinto a contractwith respondentSchoolProfessionals

Inc. ("SchoolProfessionals")z
Agency, a Division of SchoolProfessionals, to providetemporary

Contract"). The Requestfor Proposals("RFP"),

employeesfor DOE (the "School Professionals
,-,.
to which SchoolProfessionalsrespondedbeforebeing awardedthe contract,indicatedthat the

contractorwould provide professionalservicesprimarily in supportof the educationalprocessfor

a finite pcriod of timc, with a spccifìcallydclincatcdstartand cnd datc" (cmphasissupplicd).

The RFP further provided that the contractorwould "NCI| be askedto supply individuals to

perform duties coveredby NYCDOE regular staff' (emphasissupplied).

In June 2009, petitioners were allegedlymade awaÍethat layoffs acrossall titles were

imminent due to a budgetaryreduction. Accordingto petitioners,in August 2009,DOE

informed the Union that new "TeacherAide" positionswould not be consideredvacancies,and

thus any laid-off SchoolAides would not receiveany preferencein hiring.

On Septemberl, 2009,the Union receivednoticethat DOE intendedto lay off more than'-þ

500 School Aides.3 Thereafter,on September2,2009, the DOE and Local 372 enferedinto a

'
School Professionalsis suedhereinas SchoolProfessionals
Agency, which is the trade namefor
Tempositions,Inc.

'1 - .
The layoffnotice to Union ofFrcials,datedSeptember1,2009, statedas follows:
Memorandum Agreement, concerningthe employmentof temporary"Parent AssociationTeacher

Aides" ("Teacher Aides") to be hired by the ParentAssociationsand Parent-Teacher ..r-'

Associations("PAs") for the 2009-2010schoolyear. Underthe MemorandumAgreement,

TeacherAides "maynot replace,substitutefor, or supplantin any way any UFT-represented

employee"or "shall [not] cause,in whole or in part,a UFT represented

employeeto be excessed,

laid off, or otherwise adverselyaffected. . . ." TeacherAides were also to be privately funded.

employees,paid throughfunds
Petitionerscontendthat TeacherAides are SchoolProfessionals

raisedby PAs. Unlike SchoolAides, accordingto petitioners,TeacherAides work "primarily in

role to existingclassroom
the classroomto support studentsandteachersin a supplementary

staff'and assistthe Principal and teachersin developing"practicesand proceduresfor the

classroomand ensurethat a wide rangingcollectiunof projectsand tasksare cotnpleted."

.:þ-
After sendingnotice to the Union with a list of thoseemployeesaffectedby the layoff

decision,Local 372 andDOE held a meetingon October |3,200g,where DOE proposedto

rehire approximately250 of the laid-off SchoolAides for eight weeksas substitutes,with no

health or union benefits, to help school nursesadministerflu shotsto school children.

footnote3 cont'd.

You are herebynotified that layoffsand/orterminationsfor economicnecessityare

scheduledeffectiveOctober 16,2009 affectingemployeesrepresentedby your Union at the
Departmentof Education.
This list is subjectto changedue to the applicationofstatutory and contractuallayoff
procedures.
 PetÌtioners'Contentions

Petitionersrequest,inter ølia, a preliminary injunction pending final determinationof this

proceedingprohibiting the respondentsfrom laying off any SchoolAide or discontinuingthe

healthinsurancefor any SchoolAide.

As to the merits of their claims,petitionersarguethat a lay off of an employeemust be

-*l--
donein good faith, and thus requiresmore than a claim from the employerthat the civil servant's

servicesmust be terminateddue to the lack of funds. The layoff of more than 500 SchoolAides

at someof the most underservedNew York City public schools,while hiring an outside

contractorto employ more than 100new TeacherAides to perform the.sameor similar work in

the wealthiestschools in New York City, constitutesbad faith. Petitionersmaintain that while

DOE claims it must cut its budget,DOE is letting a three-year,$43 million dollar contractto
i

Future TechnologyAssociatesfor unnecessarycomputer servicesto provide "financial

applicationdevelopmentand supportservices."aThis contractdoesnot serveto benefit the

safetyand securityof New York City public schoolchildren, Civil serviceemployeeswho

perform comparableservices eam afraction of this rate. Petitionersalso arguethat the layoffs

DOE's proposalto rehire approximately250 of the laid-off SchoolAides to

areunnecessary;

that the schoolswill be unableto

help administerflu shotsto schoolchildrendemonstrates

administerthe flu shotsto the childrenif the SchoolAides are laid off, and calls into questionthe

needfor the proposedlayoffs.

4
This contractis purportedto provide . . . tools at the schoollevel to perform financial,administrative,and
fiscal analysis functions" and "fl]everage current, and expandcentralizedfunctionality to automatepayment and
s e r v i c e r e q u e s t p r o c e s s e s b e h i n d t h e s c eInt iessa.l"l e g e d t h a t t h i s y e a r , D O E w isl lp e n d m o r e t h a n $ 1 8 , 0 0 0 , 0 0 0 o n
computerconsultantswhose servicesare billed to the DOE at a rangeof $80 to $175 an hour.

;f,
 -t-

Further,DOE's layoff violatesArticle V, $6 of the New York StateConstitution,which

mandatesthat civil service appointmentsshall be madeaccordingto merit and fitness. By failing

to comply with hiring personnelbasedupon meritsand f,rtness,

the TeacherAides werehired in

bad faith. Although a city agencymay retain private contractorsto provide certain services,it

cannot be a subterfugeto circumvent the civil servicerequirements. Insteadof there being an

independentrelationshipbetweenthe DOE and its contractorSchoolProfessionals,

as required

under caselaw,respondentshave formeda collaborativeand interdependent

relationshipto

circumventthe law. SchoolProfessionalsis simply a payroll servicefor the DOE, and a

strawman to shield the DOE from this Constitutionalmandate. The terms and conditions of the

employmentof theseTeacherAides is dictatedby the DOE employees,includingthe hours

worked, assignmentof duties,and supervision.Whenpreviouslypresentedwith allegationsof

attempts to contract out civil servicework, the Commissionerof Educationheld that such

arrangementsviolate the law. In practice,theseTeacherAides work side by side with School

Aides, in the lunchroomand the playground. Therefore,civil serviceemployeeswill be working

with private contractorswho have not been deemedqualified pursuantto the merit and fitness

requirementsof Article V, $6 of the Constitution.

Petitionersalso arsuethat the SchoolProfessionalsContractviolatesEducationLaw

2590 becausethe employmentand supervisionof TeacherAides is a non-delegable

duty of the
'l-
Chancellor. Here,the TeacherAides are not "appointed"within the meaningof EducationLaw

2590 becauseSchoolProfessionalsis "solely responsiblefor its employees'work,direction,

safety and compensation." Further, the Chancellorhas a duty to appoint TeacherAides in a

manner that promotes equal educationalopportunity for all students. Yet, the employmentof
supplementalTeacherAides within the wealthierschooldistrictsthat are not facing significant

layoffs of SchoolAides, while poorerdistrictswho are losing SchoolAides haveno

supplementalTeacher-Aides,doesnot promotethe fiscal and educationequity of City of New

York students.

The School ProfessionalsContractalsoviolatesprinciplesof transparencyand fiscal

prudencepursuantto EducationLaw 2590(h)36. EducationLaw 2590(h)36requiresa

procurementpolicy that ensuresthe prudentuseof public moneyin the best interestof the

taxpayers;guards against favoritism, improvidence,extravagance,fraud and corruption; and

ensuresthat contracts are awardedon the basisof best value. Petitionersmaintain that the

SchoolProfessionalsContractpromotesfavoritism,cronyismand the improvidentexpenditureof

funds.

ContractviolatesEducationLaw
Petitionersalso arguethat the SchoolProfessionals r-

3009. At P.S. 29 in District 15, all six of the TeacherAides havebeenassignedschoolyard and

lunchroom duty each day and there is no certified teacherpresentat the school yard or in the

lunchroom. Theseassignmentsviolate EducationLaw 3009(2)(b),becauseTeacherAides have

limited authorityto "act only underthe generalsupervisionof a licensedor certifiedteacher."

Thus, the use of an outsidecontractorto employthe TeacherAides may be problematicbecause

they will not be "fully under the control" of a licensedor certified teacher.

Further,the use of PA funding underthe SchoolProfessionalsContractto hire core

instructionalstaff violates sectionl.K.6.i of Chancellor'sRegulationA-660. TheseTeacher

'
Aides are "core instructionalstaff assignedto supportteachersinside and outsideof the
.t
classroom. Presumably.the restrictionin sectionl.K.6.i of Chancellor'sRegulationA-660
againsthiring core instructional teachersor other staff by the PA for programs or instruction

during schoolhours was enactedto preventthe creationof two-tieredsystemsof education

within New York City, and the Chancellor'sRegulationspeaksto limiting the useof PA funding

for salariesof personnel. Yet the salariesof theseTeacherAides is being fundedwith monies

raisedby PAs.

The School ProfessionalsContract also perpetuateseducationalinequity and deniespoor -¡-

studentsthe right to a soundeducation.The Court of AppealshasafÍirmed a child's right to a

soundbasiceducation,and SchoolAides ensurethe safetyof childrenthroughoutthe entire

building. SchoolAides help childrenget on and off the bus,and supervisethe entrancesto

schools,the lunch room, the hallways,the bathrooms,andthe gymnasium. SchoolAides arethe

first linc of dcfbnsewhen fights breakout and are responsiblefor watching over children who are

separatedafter fighting with other children. This is a critical role at someschools,suchas LS.

52, where they are short-staffedand missing disciplinary deans. Allowing wealthy parentsto

subsidizethe staff at a small selectgroupof schools,while allowing poorer schoolsto loseall of

their SchoolAides is repugnantto principlesof democracyand fairness. Respondentshave

-'-
perpetuatedthe very inequitiesthat the Court of Appealsprohibited. Thus, petitionersargue,

they are likely to succeedon the merits of the underlying action.

It is also arguedthat petitionerswill suffer ineparableharm in that they and their family

memberswill lose their health benefits after the layoffs. Their unemploymentbenefits will be no

more than $150 per week, and petitionersallegethat they will not be able to afford COBRA and

pay their other bills. Individuals currentlyundergoingtreatmentwill immediatelylose accessto

medicalcare. Courtsof this statehaverecognizedthat injunctiverelief is appropriatewhere,as

I

here,the lossofhealth insurancecoveragecould potentiallyhavedisastrousconsequences

for the

insured. If thestatusquo ís not maintainedduringthe pendencyof this actiontheseemployees

whoseemploymentis aboutto be terminatedwill lose,amongotherthings,their positions,their

salaries,their health benefits,their life insurancebenefrts,their pensionrights,andtheir seniority

rights. They may even lose their homesand possessions.At the very leastthey will suffer a

significantdisruptionin their lives and thoseof the membersoftheir families. The employees'

ultimate reinstatementand recovery of back pay and benef,itsif they are successfulon the merits

simply cannot suffice to repair their injury and obliterate their loss.

Further, the children of the City of New York may suffer irreparableharm because

of the severityof theselayofß. As set forth in the affidavitsof petitionersfrom P.S.375 and LS.

52,the loss of SchoolAides is likely to resultin an unsafeenvironmentfor schoolchildren in the

schoolsfrom which the SchoolAides will be laid off, andthus,will have an immediateimpact

and potential irreparableharm upon the safetyof New York City school children. They will be at

increasedrisk of injury without the SchoolAides providing necessarysupervision,than those

studentsat New York City's elite schools.

Last, DOE's costsof continuingpetitioners'healthinsurancebenefitspendingthis action,

are not as costly as the harm which will be worked upon the hundredsof individualsand their

families who will lose health carewhile respondentsare ignoringthe law.

'.1-
 DOE's Opposttions

DOE contendsthat petitionersoffer no excusefor having delayedthe filing of their order

to show cause. DOE contendsthat due to the $400 million shortfall in its budget,the budgetfor o

the schools was cut by 5%. Various schoolsthen made an individual determinationto lay off

their School Aides, while otherscut overtimeand the like from their budgets,without excessing

any personnel.6

Nor do petitionershave a clearright to the relief sought. DOE's ofÊerto rehire250-300

School Aides as substitutesto assistwith the flu shotsis under a program of the City's

Department of Health and Mental Hygiene ("DOHMH").7 DOHMH has agfantto fund the

administration of flu shotsto school children and, if School Aides are hired as substitutesto

assistwith the program,will reimbulsethe DOE,for all thc salariesand incidentalcosts.

Therefore,DOHMH's funding hasno bearingon the fiscal crisis facing DOE in funding its civil-
|
serviceworkforce. The proposedrehiring of someSchoolAides as substituteson a temporary

basis would not have any impact on the DOE's budget,and cannot establishbad faith' Further,

the mere fact that someof the laid-off SchoolAides could gain temporaryemploymentto assist

in administering flu shotshardly establishesthat any "training" exclusive to School Aides is

5 adoptedDOE's argumentsin supportof its cross-motiondismiss,School

Although SchoolProfessionals
professionals'spaperswere silent as to whetherit also adoptedthoseargumentsof the DOE raisedin petitioners'
order to show causein support of injunctive relief. However, at oral argumentof this motion, School Professionals
joined and adoptedDOE's oppositionto preliminaryinjunction.

6
Petitionersdenythat the principalswere given a choiceto determinetheir budgets;the Principalof P'S.
375 Mosaic prepararorySchooldid not receivenoticethat her SchoolAides were being laid off until the day the
School Aides receivedthe notice (Transcript,p.20:4-7, datedOctober 15, 2009). At oral argument,counselfor
petitioners indicated that affected Principals were th¡eatenedand intimidated and would not come forward to attestto
this.

7
Petitionersarguethat both the DOE and the DOH are under the control of the City of New York -Þ
(Transcript,p. 4l: 13-15,datedOctober15,2009).

10
necessaryfor thosepositions. Thereis no evidencethat DOE needs"trained personnelto help"

administer theseshots so as to imply that the only reasonthat the staffing will be necessaryis due

to the layoffs of SchoolAides.

Also, thejob dutiesof TeacherAides is not the sameas that of SchoolAides. Moreover,

petitionersacknowledgethat TeacherAides areexclusivelypaid with funds raisedby PAs and

are not employeesof the DOE. TeacherAides may only servefor a finite period of time because

PAs may not be able to raise sufficient funds to hire them from year to year and PAs may wish to

terminate the servicesof a TeacherAide with whom they are dissatisfied. The relationshipis

completelyunlike DOE's relationshipwith SchoolAides.

Petitioners' argumentswith respectto DOE's contractfor a computer systemis

unavailing. Funding for a computer systcmdocsnot come from DOE's budget for personnel,

but rather is a capital expenditure.

Petitioners'conclusory,unsupportedassertion"upon informationand belief'that DOE is

using TeacherAides to perform the out-of-classroomwork that is purportedly the work of the

SchoolAides is insufficient to supporttheir claim of bad faith. Petitioners'contentionthat the

areasare
wealthierneighborhoodscan fund TeacherAides while the schoolsin disadvantaged

disproportionatelyaffectedby the layoffs leadsto the logical conclusionthat the presenceof

TeacherAides in a given schooldoesnot leadto School-Aidelayoffs. And, if poor schoolshave

no TeacherAides, the School Aides' dutiescannotpossiblybe transferredto suchcontract

workers after the layoffs are effected. Thus, petitioners' claims of bad-faith transfer of duties is

inconsistentwith their own evidence.

Additionally, the SchoolAides positionis a non-competitiveposition underthe Civil

ll

.áþ-
 -*|+

ServiceLaw, and thus, Article V, $6 of the New York StateConstitutiondoesnot apply to civil

serviceemployeessuch as petitioners(or evento thosein the competitiveclass). It hasbeenheld

that the remedyfor a claim that the hiring of privatecontractworkersviolatesthe New York

StateConstitutionis to removethe contractworkersfrom the improperassignment,not to

mandatethe rehiring of the employees.

Petitionersalso cite no authorityfor the positionthat the Chancellor'sdiscretionunder

EducationLaw 2590(h)to appoint TeacherAides is "non-delegable"or that the TeacherAides

are not "appointed"within the meaningof EducationLaw 2590(h)becausethey are employed

through a private contractor. Such bareallegationsare insufficient to establisha likeiihood of +f

successon the merits. In any case,EducationLaw 2590(hxl9) givesthe Chancellorthe

authorityto dclcgatehis power to subordinateofficersor employeesas he deemsappropriate.

Further, as to irreparableharm, caselawestablishesthat loss of employment,although

likely to causehardship, does not constituteirreparabledamagefor purposesof a preliminary

injunction. Petitionerswould be entitled to reinstatementand back pay and a restorationof their

positionsif they ultimately prevailed. Petitioners'claim that the loss of their healthinsurance

benefits constitutesirreparableharm is unfounded. The municipal and stateemployeesin other

benefitssimilar to petitioners'and facedlosing thosebenefitsif

casespresumablypossessed

discharged,and it can be implied that the courtshaverejectedthe propositionthat the lossof

r$l--

such benefits constitutesirreparableharm. Further,the casescited by petitionersto the contrary

datefrom before 1993,where a pre-existingmedicalconditioncould rendera plaintiff in New

York wholly uninsurable. And, a movant must make a showing of urgency,and the emergent

nature of this situation was createdby petitionerswho knew about theselayoffs since June,but

12
waited until the eleventhhour to file its application.Thus,petitionersshouldnot benefitfrom an

emergencycausedentirely by their own delay.

Furthermore,petitioners' assertionthat studentswill be renderedunsafedue to the layoffö+*"-

is speculativeand carurotsupportinjunctiverelief. Thousandsof SchoolAides remainin DOE's

employ, and other school staff memberscan alsoassistin out-of-classroomsupervision.Caselaw

also indicatesthat petitionerslack standingto complainof sucha harm. DOE notesthat although

petitioner Davis suesas a parentof two childrenenrolledin P.S. 375, shelacks standingto raise

the issueof harm to anYchildren who do not attendP.S' 375.

Nor do the balanceof equitiesfavor petitioners,particularly sincethe courts must weigh

the interestsof the generalpublic as well as the interestsof the parties to the litigation. Although

joþ loss impacts petitioners,the layofls are necessaryto reduce a daunting budget deficit. Had

this application beentimely made, suchreview could have progressedwithout the needfor an .-fi

injunction. Petitioners'requesthampersthe DOE from closing its $400 million shortfallfor the

2009-2010year, and there will not be sufficient funding to continue all existing school-related

programsor persorìnel.If injunctiverelief is granted,the Chancellorwill be forcedto

immediately implement other cuts, without the benefit of forethought or planning, which will

necessarilyinclude programs for staff that individual school principals have deemedmore

important to the interestsof school children that the presenceof School Aides subjectto layoffs.

Therefore,arguesthe DOE, the balanceof the equitiesmilitates againstthe issuanceof injunctive

relief.

the DOE requeststhat

In the eventthe Court determinesto enjoin respondents,
,f-'
the petitionerspost an undertakingsufficientto reimbursethe DOE for lost monetarysavings

13
attendantto continuingpetitioners'employmentbeyondOctober 16,2009,pursuantto CPLR

6312(b).8DOE's ExecutiveDirector of the Office of FinancialStrategicAnalysisfor the City

School District of the City of New York, SusanOlds ("DOE's ExecutiveDirector") atteststhat

the averagedaily cost of maintaining5 i 1 SchoolAides that were scheduledto be laid off on

October 16,2009 is 564,923.97.

Discussion

At the outset,that Court notesthat it found that all of the witnesseswho testifiedat the

hearingon October26,2009 to be credibleand forthcoming.

I. Temporary Restraining Order

In order for a preliminary injunctionto be issuedpursuantto CPLR 6301,petitioners

must demonstrate(1) a likelihood of successon the merits;(2) ineparableinjury absentthe

granting of the preliminary injunction; and (3) a balancingof the equities which favors the

issuanceof injunctive relief (Sr.Paul Fire and Marine Ins. Co. v York ClaimsServ.,Lnc.,765

NYS2d 573, 308 AD2d 347 llstDept 20031;New York City OffTrack Betting Corp. v New York

RacingAssn.,Lnc.,250AD2d 437,673NYS2d 387 [lst Dept i998]; Grumetv Cuomo,162Misc

-¡l¿

2d,913,617NYS2d 620 fSupremeCourt New York County 1994]). Preliminaryinjunctiverelief

is a drasticremedy,which will only be grantedif it is establishedthat thereis a clearright to the

relief under the law and the facts(Koultukisv Phillips,295 ADZ1433,728 NYS2d 440 flst Dept

20011).

8
At the oral argument for the Interim Stay, the Court directed DOE to provide documentationsupporting
the amount DOE requestedas an appropriateundertaking.

t4

{'
 +

A,. Likelihood of Successon the Merits

Petitionershave sufficiently establisheda likelihoodof successon the merits of their

claimsthat the SchoolProfessionalsContractviolatesArticle V, $ 6 of the New York State

Constitution,and that the layoffs violate EducationLaw 2590(h)(4)EducationLaw 3009,and

Chancellor'sRegulationA-660. However,petitionershavenot suff,rcientlyestablisheda

likelihood of successon the merits of their claim that the DOE's layoffs were performedin bad

faith, violate EducationLaw 2590(hX36),or that the SchoolProfessionalsContractperpetuates

educationalinequity and endangersthe right of poor studentsto a sound education.

Terminatíon in Bad Faith I

In order to establishtheir bad faith argument,petitionersrely on caselawaddressingthe

abolishmentof a position. Here, thc SchoolAide petitionerswould be laid ofI, and suchlayofïis

not an abolishmentof the title of "school Aide," in and of itself.e It is alsonoted that a position

is not effectively abolishedwhere a personnot appointedin accordancewith Civil ServiceLaw is

employedto perform dutiesformerly performedby holder of position(Folkesv Hushion,283NY

536 [1940]). Basedon the cumulativetestimonyof the witnessesat the oral argument,it appears

that in many instances,the School Aides slatedfor layoffs are the lowest on the seniority totem

pole, and will be replacedor "bumped" by more seniorSchoolAides transferredfrom other

diminution in the numberof School

schools. So, generally,the result will be an across-the-board
-f:

Aides in the New York City Schoolsystem.

Petitionersrely on DeMay v Gomulkn(88 Misc 2d747,390 NYS2d 363 [SupremeCourt,

n
Only somePrincipalsof schoolsterminatedtheir SchoolAides, while otherschosedifferent methodsto
meet their budget cuts.

15
Montgomery County I9761) for the proposition thata layoff requiresmore than a bare statement

from the employerthat due to the lack of funds the civil servant'sservicesmust be terminated,

and Delia Vecchtav Town of North Hempstead(207 ADzd 484l2d Dept 19941)andMafter of

Rosenthalv Gilrov (208 AD2d 7486, 17NYS2d 509 l2d Dept 19941)for the propositionthat a

layoff may not be a subterfugeto avoid the statutoryprotectionsafforded civil servantsbefore

they are discharged.

In DeMay, petitionertook a civil serviceexaminationfor the positionof Public Health

Sanitarian. In SeptemberI97l,the Mayor of the city notified petitionerof his appointmentto the

position. In May L976,the Mayor notifiedthe petitioner"that your servicesareterminatedas of

June 15, 1976, citing "financial problemsasper the 1976city budget." Petitionerthen soughtto

be reiristated,claiming that he was dischargedin a manncr not authorizedby law. The Court first

cited the rule that "an employeeholdingpermanentstatusin the classifiedservicemay be

suspendedas the result of abolition of positionsfor reasonsof economy,providedonly that the

abolitions are necessaryand made in good faith." The Court then found that the petitioner's

position as Public Health Sanitarianwas not abolished,but that the Mayor merely terminatedhis

services,and that to achievethe abolitionof a positionas permittedby the statute,the city must

"do more than make a bare statementthat becauseof the lack of funds the petitioner'sservices

are terminated." After finding that petitioner's papersdid not indicate any bad faith on the part

of the Mayor, who initially appointedthe petitioner to the position, the Court grantedthe petition

advisingthat if the Mayor soughtto abolishthe position of Public Health

for reinstatement,

Sanitarian,he must do so pursuantto the law. It appearsfrom DeMay that a permanentemployee

'
in the classifiedcivil service,may be dischargedfor reasonsof economyonly wherethe position

T6
is abolished.

In Della Vecchia,the Town of Hempsteadterminatedthe petitioner'semploymentas

Laborer II in the Department of Highways of the Town of North Hempstead,and petitioner

brought an Article 78 proceedingchallenginghis termination.In affrrmingthe dismissalof his

petition, the SecondDepartmentheld that petitionerfailed to meethis burdenof provingthat his

position was abolishedin bad faith. Accordingto the SecondDepartmentin Matter of -t-

by evidencethat a newly hired personperformed

Rosenthal,badfaith may be demonstrated

substantially the sameduties as the dischargedemployeeand "there was evidenceof bad faith by

the respondentsbasedupon their treatmentof the petitioner before her position was abolished,

the fact that she was dischargedjust prior to vestingin the Stateretirement system,and, . - . the

fact that there did not appearto be an urgent needto auttxrate the petitioner'sposition. Most

importantly, there was evidencethat the personhired for the newly titled position pe{otmed

substantially the sameduties as the petitioner." (Emphasisadded).

Thus, an employeeholding permanentstatusin the classifiedservicemay be suspended

as the result of abolition of positionsfor reasonsof economy,provided only that the abolitions

are necessaryand made in good faith, and that the position was not abolishedas a subterfugeto

avoid statutoryprotectionaffordedcivil servantsbeforedischarge(DeMay, citing Civil Service

Law 80,1080-a;Matter of Schwabv Bowen,8OMisc 2d763, affi 51AD2d 574;Della Vecchia,

to
Ciuil ServiceLaw $ 80 provides,in pertinentpart,that:

Where, becauseof economy,consolidationor abolitionof functions,. . . positionsin the competitiveclass

are abolished. . . or reducedin rank or salarygrade,suspensionor demotion. . . amongincumbentsholding
the sameor similar positionsshall be made in the inverseorder of original appointmenton a permanent
jurisdiction in which suchabolitionor
basis in the classifiedservicein the serviceof the governmental
reduction ofpositions occurs. . . .

t7

+
 +:

leaveto appealdismÌssed84 NYS2d 1018,622NYS2d 9I7,leave to appealdenied84 NYS2d

8I2,622NYS2d 915;Linney v City of Plattsburgh,4gAD3d 1020,853NYS2d 227 [3dDept

2006lla"public employermay, in the absenceof bad faith, collusionor fraud, abolishpositions

for purposesof economyor efficiency"]; Cohenv Crown Point Cent.SchoolDist.,306 ADZi

732,761,NYS2d 3S4 [3d Dept2003][same])'

To abolisha position as permittedby the statute,public employers"should be requiredto

do more than make abare statement"that the petitioners'servicesareterminatedbecauseof the

must tendersufhcientproof establishingthat the

lack of funds (DeMay at976). Respondents

abolition of petitioners'position was due to valid economicand budgetaryconcerns,and once -4È:_

such burden is met, petitioners must demonstratebad faith or an effort to circumvent the Civil

ServiceLaw in a public employer'seliminationof a position;in so doing,petitioncrs"must

eliminatebonafide reasonsfor the eliminationof his or her position,show that no savingswere

accomplished,or show that someonewas hired to replacehim or het" (Cohenv Crown Point

Cent.School Dist.,306AD2d 732,761NYS2d 384 [3d Dept 2003];Hritz-Seiftsv Townof

poughkeepsie,22AD3d 493,803NYS2d 656 lzd Dept 20051[one who challengesthe validity

of suchan act hasthe burden of proving that the employerdid not act in good faith in abolishing

the position]). When a triable issueof fact with regardto bad faith exists,a full hearingmust be

held (Matter of Rosentha[).

={È
DOE initially demonstratedthat the layoffs were due to valid economic and budgetary

concerns.SchoolAide positions,at leasta certainschools,were essentiallyeliminatedby laying

someSchoolAides off and replacingthem with other SchoolAides with more seniority. It

appearsthat DOE intendsto shift the work beingperformedby the SchoolsAides subjectto

18
layoff, amongthe remainingSchoolsAides. Althoughthe layoff will result in a diminution in

the numberof SchoolAides employedby the DOE, and it appearsthat TeacherAides performa

fraction of the work historically assignedto SchoolAides, therewas no testimonyto support,h. .*,

claim that the laid-off SchoolsAides will be "replaced"by TeacherAides.

The testimony indicatesthat althoughTeacherAides, who were intendedto work in fhe

classrooms,arenot working exclusivelyin the classroom,they are alsoworking in the school

yard and lunch room.tt TeacherAides accompanytheir classesto the lunchroom,sometimes

with their assignedteacher,and sometimeswithout, and remain with their studentsduring the

lunch period in the cafeteriaswithout the assignedteacherto supervisetheir studentswhile they

are eating. However, supervisionof the studentsis the extentto which the duties of the Teacher

Aides in the lunch room overlapwith thoseof thc cxisting SchoolAides. SchoolAides continue

to perform many other dutiesin the lunch room, suchas utilizing the school'scomputersystem

to determinewhich studentsreceive "free lunch" or "reduced" lunch. TeacherAides then

accompanytheir studentsto the school yard, wherethey engagethe studentsin outdoor activities,

obtain gamesfor the studentsto play, and otherwiseperformgeneralsupervisionof their

students.SchoolAides are assignedto perform similar responsibilitiesin the schoolyard,

including safeguardingthe children from intruders.

However,TeacherAides perform many of in-classroomdutiesand out-of-classroom

duties that TeacherAides do not, and are not permittedto perform. For example,the School

Aides handle,store,and distributetext books,instructionalsuppliesand materials,audio-visual

Il
Petitionerscontend that in P.S. 29 in Brooklyn, six TeacherAides are working in the school yard and
lunch room daily (Transcript,p. 20:ll-19, datedOctober15,2009).

19
equipment and materials,special materialsfor museumexhibits, sciencefairs, health education,

art, Red Cross, and auditorium programs;maintain inventories; act as assistantto the school

treasurer;collect funds suchas schoolbank, lunch,and milk; count and depositmoney;and

transmitordersfor lunchesand milk. SchoolAides prepareweekly lunch reports;checksreports,

notes,and library lists, handlethe arrival and departureof children transportedto schoolby bus;

and direct the school servicesquadin checkingmilk deliveries,in distributingmilk to the

,#
classroom,in collectingcontainers,and in storingmilk for later distribution. None of theselatter

responsibilitiesareperformedby the SchoolAides. To the degreethe TeacherAides usurpthe

functions of the SchoolAides, this is limited to the SchoolAides' dutiesin the lunchroom,in

part, and in the school yard. Therefore,the record doesnot sufficiently supportpetitioners'

contention that the TeaoherAides are performing substanttally similar tasksas the School Aidcs.

Further,DOE's offer to rehiremany of the laid-off SchoolAides as substitutesto

administerflu shotsis madepossibleby the funding DOE will receiveby a separateCity agency,

the DOHMH. Also, while DOE claimsthat it lacksthe funds to pay SchoolAides, DOE's $43

million expenditureon computerconsultingraisesdoubtsas to the necessityto lay off more than

500 School Aides. However,this factor,in and of itself, is insufficientto rise to the level of bad +

faith. Therefore,petitionersfailed to demonstralea likelihood of successon the merits of their

claim that the layoffs were unnecessaryand madein bad faith, sufficient to supporta preliminary

injunction at this juncture (cf. Matter of Rosenthalv Gilrov,208 AD2d748 ll994l freversinga

dismissalof the petition where countyboardabolishedthe position of accountclerk and

petitioner was dischargedjust prior to vesting in the Stateretirement system,there did not appear

to be an urgent need to automatethe petitioner'sposition, and the personhired for the newly

20

-þ.
titled position performedsubstantiallythe samedutiesas the petitioner]).

Article V, $6 of the New York State Constitution

Article V, $6 mandates:

Appointmentsand promotionsin the civil serviceof the stateand all of the civil
divisions thereof, . . . shall be madeaccordingto merit and fitness to be
ascertained,as far as practicable,by examinationwhich, as far as practicable,shall
becompetitive....

Although the New York StateConstitutionmandatesthat employeesof the Stateand all

of its subdivisionsshall be selectedon merit, thereis no constitutionalmandatethat all services

furnishedor labor performedfor a governmentalagencymustbe suppliedby personsdirectly

employedby the governmentalagency(CoxenvMeyer,130AD2d 72,518 NYS2d 158 [1987])' l:

Municipalities are free to contractin good faith with privatepartiesfor the provisionof services

which might otherwisebe performedby public employees,as long as it is not a subterfugeto

s (ld.; SouthOrangetownKttchen llorkers Assnv South

circumventthe'civil servicerequirement

OrangetownCentral School Díst.of Townsof Orangetownand Clarkstown, I 0l Misc 2d 1016,

Civil ServiceEmployeesAssnv
422 NyS2d 597 [Sup Ct lgTg] citing Matter of Westchester

, affd 44 NY2d 985,408 NYS2d 501)'

Cimino,sg AD2d 869,396NYS2d 692lzdDept 19971

Thus, a contract for the provision of servicesby the private sectorto the govemmentcan be

challengedas violative of Article V, $6 of the New York StateConstitutionwherethe private

contracting parfy's employeesare not independentof the government,but are controlled and

af 870;
supervisedby governmentoff,rcials (Matter of WestchesterCivil Service EmployeesAssn'

in
citing Matter of Corwinv Farrell,303 NY 61,6611951]).Evenwhen suchcontractsresult

cost savings,they must satisff certainother criteriain orderto be valid underthe State

21
Constitution(Coxenat 76).

In Corwin, tenuredcompetitivecivil serviceemployeesemployedastitle examinerswere

dischargedby the New York City HousingAuthority ("NYCHA") afterNYCHA contracted*i,h .,,

a private abstractcorporationto performthe sametitle examinationservices.In dismissingthe

goverrìmentemployees'challengeto the legalityof their dismissaland the proprietyof the

contract,the Court of Appeals specifically held that "neither constitutionalmandatenor statutory

enactmentrequiresthat all servicesfurnishedor all labor performed for a governmentalagency

must be suppliedby personsdirectly employed"by it. The Court of Appeals, in Corwin' upheld

the contract betweenNYCHA and the abstractcompany,noting that NYCHA did not appoint

individualsin the placesof thosedismissed,but, becauseof the unusualsituationit faced,it

enteredinto a normal modern businesspracticeof purohasingabstractsandcertificationsof'title

at a fixed price. NYCHA did not select,control or evenapprovethe officersor employeesof the
4-
contractor;did not fix their compensationor their hoursof work; did not engagethem

exclusivelynor restrict them from engagingin their regularbusinesswith anyonethey choose;

there was no employer-employeerelationshipwhatsoever;and the contractsdid not constitutean

"appointment"in the civil service.

Ctvil ServiceEmployeesAssn.
In applying Corwin,the Court in Matter of Westchester

(58 AD af 87l),held that the contractenteredinto betweenthe county and Effective Security,

Inc. (.'Effective") was a legitimate attemptby the county to have servicesprovided to it by an

independentcontractorin a more cost-efficientmanner,and that the New York StateConstitution

and the Civil ServiceLaw did not bar this actionby the county. Petitionerswere initially

assignedto county'smedical centeras permanentwatchmenin the labor classof the civil service.*

22
In 1976,additional security at the medical centerwas fumished by a private securityfirm

pursuantto a contract with the county. In preparingthe budget for 1977,the county rejecteda

proposalto createa new 2l-mansecurity force composedentirelyof countyemployeesand noted

that "by private contract the County doesnot incur any cost for uniforms or fringe benefits which

currently average32%oofgross salary." Thereafterthe county adopteda budget which made no

provision for eitherwatchmenor securityguards.The petitioners'positionswere abolishedas of

-F

December31,1976. Since the l9l6 contractwith the privatesecurityguardsat the medical

centerexpiredon December3 l, 1976,thecountyenteredinto a private securityguardcontract

to their positions"as
with Effective,to commencein 1977. Petitionerssoughtreinstatement

security guards" arguing that the 1977 contractbetweenthe county and Effective "masked an

euployer-employeerelationship betweenthc county and Effective's employeesand that the latter

had beenappointedto the individual petitioners'civil servicejob positionsin violation of the

New York StateConstitution." In rejectingpetitioners'claim, the Court notedthat "under

Corwin, it is of no moment that the duties performedby the employeesunder the private contract

are identicalto the dutiesperformedby the terminatedgovernmentalemployees."The Court

continued that even assumingthat petitioners' duties as identical to those of the security guards, 't'

"that fact alonewould not be determinativeof the key issueherein,i.e.,the degreeof control

exercisedby the county over the private securityguards." In resolvingthis latterthe Court noted

the "salient features"ofthe contract at issuetherein:

(1) Although the county requiresthe paymentof certainminimum wages,it did not fix
the salariesof the private security guards;(2) The county did not require that the security
guardsprovide their servicesexclusively to the county; (3) Effective paid all Social
Security and other appropriatetaxes; (4) Effective had the right to hire its own employees
without county approval; (5) The county had no power to selector control the officers of

¿J
 Effective; (6) The county had no power to control which guard was assignedto any
particular guardpost; and (7) Effective'ssupervisorsexertedday-to-daycontrol over the
guards."

The Court alsonoted that the countyreceivedbenefitsfrom the contract:"(1) Effective

providedall materials,tools and equipment;(2) The countywould not be liable for any damages

ro personsor property;and (3) The countysavedthe substantiathidden cost of employeefringe

benehts."

in order that more than 100 new

That DOE contractedwith SchoolProfessionals

for
employeesmay be hired to perform the sameor similar work as petitionersis inconsequential

purposesof determiningwhetherNew York StateConstitutionAficle V, $6 hasbeenviolated

(seeNassau Educational Chapter of Civil ServiceEmployeesAssn, Inc. v Great Neck Union Free-r-

School Dist.,57 NY2d 658, 454NYS2d 67 U9821f"Neitherthe fact that the samcdutiesare

performedby the contractor'semployeesas were performedpreviouslyby the district's

employees"is determinative]).

Here, the SchoolProfessionalsContract,Paragraph28, entitled"Contractor'sStaff'

provides:

The Contractor shall employ or contractfor the servicesof only competentworkmen,

consultants,independentcontractorsand other employeesas are, or reasonablymay be,
necessaryfor the performanceof the Serviceshereunder.

The Contractorwarrantsthat it shall be solelyresponsiblefor its employees'work,

direction, safetyand compensation.(6184)

The Contractor agreesto replaceimmediately any employeeand not engagesuch

employeein the performanceof this Agreement,if the Contractoris notified in writing
thai, in the opinion of either the Chancellor,a Community Superintendent,or their
designees,suchemployeeis incompetentor otherwiseimpedesthe performanceof the
serviceshereunder.

24
 Contractdoesnot indicate,that (1) the
The recordis silent, and the SchoolProfessionals

(2) DOE requires

DOE fixes the salariesof the TeacherAides employedby SchoolProfessionals,

that the TeacherAides provide their servicesexclusivelyto the DOE; (3) SchoolProfessionals
-*1'-
pays all state,federal, and appropriatetaxes; (4) School Professionalsdoes not have the right to

hire its own employeeswithout DOE approval;and (5) DOE has control the SchoolProfessionals

officers. DOE doeshoweverreceivethe benefitof (1) SchoolProfessionalsprovidingservices

underthe Contract;(2) indemnificationfor all claims,actions,costsand damageto which the

DOE may be subjectedby reasonof injury to personor property,or r,rnongfuldeath,resulting

or
malpracticeor incompetenceof SchoolProfessionals
from any act, omission,carelessness,

SchoolProfessionals'semployees,and (3) substantialcost savingsby implementinga5o/obudget

cut, and permitting Principalsto layoff SchoolAides at their respectiveschools.

However,more critically, the TeacherAides are controlledand supervisedby DOE.

DOE personnelexerciseday-to-daycontrol over the TeacherAides, by directingthe termsand __¡h*-

conditionsof their employment,includingthe hoursworked,assignmentof duties,and

supervision. DOE also has authorityto assigna TeacherAide to any class. Therefore,

petitioners'submissionsraisean issueas to whetherSchoolProfessionalsContractviolated

Article V, $6 of the New York StateConstitution,sufficientto supporta preliminaryinjunction

at this juncture.

EducationLaw 2590(þ@

Education Law 2590(h) setsforth the authority of the Chancellor of City schools,and

states:

of
The chancellorshall havethe following powersand dutiesas the superintendent

25
 schoolsand chief executive officer for the city district, which the chancellorshall
exerciseto promote an equal educationalopportunity for all studentsin the schoolsof the
city district, promotefiscal and educationalequity,increasestudentachievementand
schoolperformanceand encouragelocal school-based innovation,includingthe power
and duty to:

4. Appoint teacher-aide.çfor the schoolsandprogramsunderhis or herjurisdiction within

the budgetaryallocation therefor.
(Emphasisadded).

Here,the recordindicatesthat the plannedlayoffs disproportionatelyimpactpoorer

districts,and underminethe equaleducationalopportunityfor studentsin the effectedschools. *þ..

For example,DOE intendsto lay off47 of 2$ SchoolAides in District 6 in Washington

Heights. Within District 6, at I.S. 52, 8 out of l2 schoolaidesare scheduledto be laid off. I.S.

52 is particularlyovercrowded;thereareat least8 oversizedclassesat I.S. 52.

DOE also intendsto lay off 27 SchoolAidcs in District 4, EastHarlem,resultingin a

22o/oloss.DOE intendsto lay off all five of the SchoolAides at P.S.375, which servespre-K

through fifth gradewithin District 4. A DOE chartwhich depictsthe demographicsof P.S' 375

statesthat in 2008-09,89.7%of the P.S.375 studentscomefrom families at or below the poverty

rate,which appearto indicatethat P.S.375 will not havePA fundedTeacherAides to replacethe

SchoolAides,r2eventhough the oral testimonyindicatesthat in many instances,SchoolAides

-'4i.-
are being replaced,in part, by more seniorSchoolAides.

On the otherhand,Districts 1,2, and3 in Manhattanareonly losing 1% of their school

aides.District 15,which coversPark Slope,will only lose 6% of its SchoolAides. The record

l2
The testimonyof Dana Richards-Middleton,a "family assistant"within District 75 at P.S. 396 ("Mrs.
Richards-Middleton"),testifiedthat this schoolaskedfor "parentvolunteers"to come into the school and assistin
patrollingthe halls, monitoringthe lunch room, and performotheradministrativeduties. However,in her opinion,
itris atte-pt is unrealisticbecauseparentswork and haveothercommitmentsthat keepthem from volunteeringat
schools(unpaginatedtranscript). Mrs. Richards-Middletonalso did not believethat the PA could raise the fundsto
pay the salariesof TeacherAides.

26
indicates that atP.S.6. which is locatedon MadisonAvenueand 82nd Street,only 6.4% of its +

studentslived at the poverty rate as of 2009. P.S.6 hashired 17 PA-fundedTeacherAides.

At P.S.375 (Mosaic PreparatoryAcademy),all five SchoolAides were laid off and the

record indicatesthat in 2008-09,85% of the studentsat I.S, 52 come from familiesat the poverty

rate. V/hile petitioners'concludethat therewill be no one at I.S. 52 to supervisethe conductof

the children in the lunchroom or in the schoolyard, again,the oral testimony indicatedthat

basedon
School Aides arebeing replaced,in part,by more seniorSchoolAides. Nonetheless,

the record, it appearsthat the scheduledlayoffs createa signif,rcantdiminution of educational

services and opportunity for poorer students,and contractingfor TeacherAides at the wealthiest

schoolsin New york City doesnot promotean equaleducationalopportunityfor all the students
4'

of New York City.

Further,theseTeacherAides are not "appointed"within the meaningof section2590

and not the DOE. Under Paragraph28 of

becausethey are employeesof SchoolProfessionals,

agreedto be'lsolely responsiblefor its

the School professionalsContract,SchoolProfessionals

employees' work, direction,safetyand compensation."That EducationLaw 2590(hX19)gives

the Chancellor the authority to delegatehis power to subordinateofficers or employeesas he

doesnot provide the Chancellorthe authority

deemsappropriate,as pointed out by respondents,

to delegatehis authority to appoint TeacherAides to an independentcontractor,who is not a

"subordinateofficer" or "employee"as requiredin EducationLaw 2590(h). Thus,the School

ProfessionalsContract appears,at this juncture, to also violate EducationLaw 2590, so as to .l

support preliminary inj unctive relief'

27
 Education Law 25 90(h)(36)

Pursuantto EducationLaw 2590(hX36),the Chancelloris requiredto developa

procurementpolicy that ensures"the wise and prudentuseof public moneyin the bestinterestof

the taxpayersof the state;guard againstfavoritism, improvidence,extravagance,fraud and

corruption" and ensures"that contractsare awardedconsistentwith law and on the basisof best

value, including, but not limited to, the following criteria:quality, cost and efficiency."

Petitionersfailed to demonstratethat the SchoolProfessionalsContractpromotes

favoritism, cronyism and the improvidentexpenditureof funds,in direct contraventionof $

25e0(hx36).

EducationLatv 3009

EducationLaw 3009 provides,in relevantpart,that:

2. a. .. . the school authoritiesof any schooldistrict shall have the power, in their
discretion,to employ personsas teacheraideswho shall assistthe regularteacheror
teachersof the district in the performanceof their teachingfunctionsby performingthose
nonteachingduties otherwiseperformed by suchregular teacheror teachers,

2.b. .. . schoolauthorities. . . shall havethe power, in their discretion,to employpersons

as teachingassistants.Suchpersons,if so employed,shall be authorizedto act only under
the generalsupervisionofa licensedor certifiedteacher.

The TeacherAides here are expectedto assistthe teachersby supportingthe studentsand

teachersin a supplementaryrole to existingclassroomstaff insidethe classroom.To the extent

theseTeacherAides provide any form of instructionin the classroom,DOE "lacks the powerto

use the employeesof others fsuchas SchoolProfessionals]to fill teachingpositionsthat have

beencertified in the State'sunclassifiedservice"(Woodard,2006NY Educ.Dept. Lexis 84 INY

Educ Dept 20061).

28
 Further, petitioners' contentionthat the TeacherAides must be supervisedby a licensed

or certified teacheris correct to the extentthat the TeacherAides herein constitute"teaching

assistants"under2.b of EducationLaw 3009. To the extentthe TeacherAides qualify as

"teachingassistants"and work alongside SchoolAides,the TeacherAides are not working

underthe supervisionof a certifiedteacheras requiredunder2.b. The Court notesthat the

testimonyat the hearingestablishedthat the TeacherAides working in the schoolyard were not

underthe generalsupervisionof the certifiedteacherto whom they were assignedto assistin the
'r
classroom.Additionally, althoughtherewere TeacherAides in the schoolyard who were also

certified to teach,suchTeacherAides werenot hiredby DOE in the capacityof a "certified

teacher,"and therefore,could not providethe necessarygeneralsupervisionofa certifiedteacher

in the school ya¡d. And, the actual certitied teachersin the school yard were providing

supervision and assistanceonly when a "situation" arosethat so required. As such,it cannotbe

said that TeachersAides working in the school yard were working under the generalsupervision

of a certified teacher. Furthermore,thoseTeacherAides who were also certified to teach

providedno direct supervisionof the otherTeacherAides in the schoolyard. BecauseEducation

Law 3009 requiresthat TeacherAides must be underthe supervisionof a teacher,the useof

SchoolProfessionalsto employ TeacherAides arguablyviolatessaid section,becausethey will -t-

not be "fully underthe control" of a licensedor certif,redteacher.Therefore,petitioners'claim in

this regard are sufficient to supportpreliminary injunctive relief.

Chancellor's Regul ation A-660

Assumingthe Court hasjurisdiction over petitioners'claim under ChancellorRegulation

A-660, pursuantto Section 1.K.1 of Chancellor'sRegulationA-660, PA funds arerequiredto be

29
separateand independentfrom schoolfunds and budgets,and cannotbe combinedwith school,

GeneralOrganizationor personalfunds. Further,PA funds can only be donatedto the schoolby

vote of the membership.Section 1.K.6.f.,entitled"Hiring Instructionaland Other Staff," limits

the expenditureof PA funds, and states:

During SchoolHours

Core instructional teachersor other staff may not be hired by the PA for programs
or instruction during school hours.Funds may not be contributedto the school for
this purpose.However, fundsmay be usedfor hiring supplementalstaff, e.g',art
clusterteacher. Fundsmust be acceptedby the superintendent with prior approval
by the Chancelloror designee.

ii. During Non-SchoolHours

. Activities - A PA may employstaff to conductafter-schoolor weekendactivities'

Departmentemployeesmay be hired only to work directly with children(e.g.,
tutoring, coachingsPorts).

. Restrictions- PAs may not hire Departmentemployeesto run the program(s)or

perform other administrativetasks.

The recordindicatesthat the TeacherAides hereinare assignedto provide supportto

teachersinsidethe classroom,as well as outsideof the classroom,and therefore,canbe

considered"core instructional staff." Yet the salariesof theseTeacherAides is being funded

with moniesraisedby PAs. Petitionerssufficientlyestablishedthat the use of PA funding to hire

core instructionalstaff violates $ l.K.6.i of Chancellor'sRegulationA-660 to supportpreliminary

injunctive relief.

EducationalInequitY

In interpretingArticle XI, $ 1 of the New York StateConstitution,the Court of Appeals

rejectedthe disproportionatedistribution of funding,basedon classand ordereda reform of the

JU
funding systemto ensurethat every school in New York City hasthe resourcesnecessaryfor

providing the opportunity for a soundbasic education. In Campaignfor Fiscal Equity v State, S

in, inter alia, physicalfacilities,

NYzd 14 [2006]),petitionersallegedthat the inadequacies

curricula, numbersof qualif,redteachers,availabilityof textbooks,library books,violatedArticle

--l--
XI, $ 1 of the StateConstitution"the EducationArticle, which mandatesthat "[t]he legislature

shall provide for the maintenanceand supportof a systemof free commonschools,whereinall

the children of this statemay be educated."The Court of Appealsheld that petitioners

sufficiently statedcauseof action under Article XI, $ 1 of the StateConstitution'

The Education Article imposesa duty to ensurethe availability of a soundbasic education

to all the children of the State(Campatgnfor Fiscal Equity, citing Boørd of Educ., Levittown

(Jnionþ'reeSchool Dist.v Nyquist,sTNY2d 27,453 NYS2d 643 Ú9821). Undcr the Education

Article, childrenare entitledto minimally adequatephysicalfacilities and classroomswhich

provide enoughlight, space,heat, and air to permit children to learn, and adequate

instrumentalitiesof learningsuchas desks,chairs,pencils,and reasonablycurrenttextbooks' -lo

Children are also entitled to minimally adequateteachingby sufficient personneladequately

Aides
trained to teachthosesubjectareas(id. at317). The diminution in the numberof School

to
does not appeartoaffect thesebasic requirements. However, arguably,inherent in the duty

provide what the Court of Appealsconsideredasbasicservices,is the duty to provide a safe,

|
orderly learningenvironment(seee.g.,CampaignforFiscal Equity v State,187Misc 2d '719

NyS2d 475 [SupremeCourt New York County2001] fDegrasse,J.]; seealso,Idaho Schoolsfor

Equal Educ.opportunityvstate,l32Idaho 55g,563,565,976P2dg13,917,919

[1998]

school districts to fund facilities that offer a

ff,rndingthat there is a "duty to provide a meansfor

31 +J'-.
safe environment conducive to learning"]). Consistentwith a student'sright to an educational

opportunity is the right for that learning to take place in an environment free from destructive

disturbancesand disruptions,sometimesthe resultof overcrowdingand the lack of adequate

supervision.

School Aides who superviseschoolchildrenin lunchrooms,lavatories,and schoolyards,

and assistthem in gettingon and off buses,aretrainedto providethis necessarysupervision.

classroomsarenot the only placeswhere

Although they do not work inside the classrooms,

studentsspendtime in school, and in theseother frequentedareasof the school, SchoolAides -*Þ

have becomethe personnelresponsiblefor maintainingorderin theseareas. However,although

there will a diminution in the amountof SchoolAides employedby the DOE, basedon the oral

testimony,the layoffs do not necessarilyintlicatethat schoolswill be left with no SchoolAides to

perform thesesafetyfunctionsin the schools.Thus,petitionersfailed to establisha likelihood of

Contractperpetuates
successon the merits of their claim that the SchoolProfessionals

educational inequity and endangersthe right of poor studentsto a sound education.

Based on the above,the Court concludesthat petitionershave sufficiently set forth a

likelihood of successon the merits of their claimsthat the SchoolProfessionalsContractviolates

Article V, $6 of the New York StateConstitution,and that the layoffs violate EducationLaw
-¡-
2590(h)(4),EducationLaw 3009, and Chancellor'sRegulationA-660.

B. Iruep;arableHarm

Petitionerssufficiently established,at this juncture,that irreparableharm will result in the

event injunctive relief is not granted. Contraryto respondents'contentions,healthcarecoverage

"is a very important employeebenef,rtand a loss of or reductionin coveragecannotbe measured

a^
)¿
solelyby monetarydamages"(lnternational Union of OperatingEngineers,Local No. 463 v City

International (Jnionof OperatingEngineers,Local No.463 v City of Niagara Falls, l9l Misc 2d

375,379,743 NYS2d 236 [SupremeCourt Niagra County 2002]). While the terminationof

one's employmentdoesnot, in and of itself, constituteineparableharm(see Valentinev

Schembri,212 ^Dzd 371,,622 NYS2d 257 llst Dept 1995]),the documentedloss of one'shealth

benefrtsconcomitantwith the loss of employmentmay be consideredan irreparableharm

(lnternational (Jnionof OperatingEngineers,Local No. 463 [grantinga preliminaryinjunction

to maintain the status quo duringthe pendencyof the arbitration where loss of health care

coveragemay causeirreparableharm especiallyfor thosefamilies that havesignificanthealth

careproblemsl; Kimm v Blue Crossand Blue Shield,l60 Misc 2d 97 [SupremeCourt New York

County ¡gg3, Maltin Schoenfeld,J.] [granting preliminary injunction and ordering insurance

companyto continue to pay for nursing carewhere the lack of such carecould have severe,or

potentiallyfatal, resultsl; seealso, CommunicationWorkersof America v Nynex Corp.,898 F 2d

857 lzdCir 19901[finding that potentialterminationof medicalcoveragefor workersand their

fami lies constituted irreparable harm]).

In International Union of OperatingEngineers,Local No. 463, the city employerdecided

to chargeits employeesa percentageof their healthcarecosts,in allegedviolation of the parties'

collectivebargainingagreements,and the matterwas submittedfor arbitration. Pending

arbitration,petitionerssought,inter alia, a temporaryrestrainingorderand a preliminary

injunction pendingarbitration. When discussingwhetherpreliminaryinjunction was warranted

underCPLR Article 63, the Court found, tnter alia, irreparableharm, holding that the lossof

certain health care coveragecannot be recoveredby an award of monetarydamagesalone "since

aa
JJ
changing a health care provider may require a changein physiciansand a courseof treatment. . '

. It could also adverselyaffect the ability to accessdoctors,prescriptivemedications,

physiotherapyand other medical needssincecopaysand deductiblesmay be differentamongthe

plans."

Likewise here,and as set forth in the aff,idavitsof SheanicaDavis, Marilyn Rosado,

Kumar Singh,Austin Nichols, Clairicine Liriano, Edward Perez,and Luis Padilla,and the

testimonyof SheanicaDavis, theseSchoolAides, alongwith their family members,will lose

their health benefits upon the effective date of the layoffs. Thesepetitioners maintain that their

unemploymentbenefitswill be no more than $150per week. Even with the federalsubsidiesfor

COBRA, they allegedlycannotafford COBRA. Family membersof petitioners,suchas

SheanicaDavis' husbandwho just had spinalfusion back surgery,aÍe currentlyundergoing

treatmentand will immediatelylose accessto medicalcare. Thus, the recordsufficiently

supportspetitioners'claim that DOE's layoffs will causepetitionersto suffer immediate,

irreparableinjury if a temporaryinjunction is not issued.13

C. Balanceof the Equities

Petitionersalso sufficiently establishedthat the balancingof the equitiesfavorsthe

t3
A, to the ineparable harm allegedly sufferedby the students,the testimony at the oral argument,
particularlyof Mrs. Richàrds-Middleton,althoughprimarily hearsay,indicatesthat studentswere found recently
to curb
ioitering in the hallways. School SafetyOffrcersassignedto P.S.36 to monitor the hallwaysare ineffective
the loitJring becauset-heseOfficers do not patrol the hallwaysas would the School Aides. Further,according to Mrs.
three to one near the beginning of the 2009-
Richards-Middleton,the number of SchoolAides at P.S.36 went from
20 t0 schoolyear. However,this decreasein the numberof SchoolAides occurredprior to the scheduledlayoffs.
patroìlingthe
Thus, althoughthe safetyof studentsare at risk wherethereis an insufficientnumberof SchoolAides
herein existed when the School Aides had not yet been
school hallwãys,the loitering and safefyissuestestifiedto
laid off. tn tight of suchtestìmonyar oral argument,and to the degree that the laid-offSchool Aides will be replaced
partially by seniorSchoolAides, the Court cannot determine, at this juncture, whether New York City school
ònild..n may suffer irreparableinjury in the eventinjunctiverelief is not issued.

34
issuanceof such relief. A balancing of the equitiesfavors the movant where the irreparable

injury to be sustainedby the plaintiff is greaterthan the harm causedto defendantthrough

impositionof the injunction(seeKurtz v Zion,61 AD2d 778,779 [1st Dept 1978]). Here,the
I
balanceof the equitiesfavor petitioners.The loss of healthcarecoverageoutweighsany possible l

monetaryloss to the DOE (lnternational Union of OperatingEngineers,Local No. 463, at 381)'

is mollified and mitigatedby the posting

The cost to the DOE for continuationof healthbenef,rts

unlike petitioners,can be madewhole with money' Thus,the

of an undertaking. Respondents,
-r-
balance of the equitiestip in favor of petitioners'

III. Posting of Undertaking

CPLR Rule 6312(b)provides,in pertinentpart,as follows:

Undertaking.Except as providedin section2512,prior to the grantingof a preliminary

injunction, the plaintiff shall give an undertakingin an amount to be fixed by the court,
that the plaintiff, if it is finally determinedthat he or shewas not entitled to an injunction,
will pay to the defendantall damagesand costswhich may be sustainedby reasonof the
injunction. . . .

At oral argument,DOE arguedthat sincethe Union is the main petitioner seekingto

protect its members,DOE is requestingthat the Court direct that the Union post the undertaking,

and that it was not seekingan undertakingfrorn the individual petitioners. The affidavit of

DOE's entitlementto an undertakingin the

DOE's ExecutiveDirector sufficiently establishes
I
amount oî 564,923.97perday during the |2-day period,in the total amountof $779,087.64, fot

the period during which this Court's preliminaryinjunctionremainsin effect. In light of this

Court,s decision herein to grant a preliminary injunction, pending further determinationon the

cross-motions,petitionersshall post a bond in the amountof $779,000.00to coverthe cost of

DOE's anticipatedloss,for saidperiod.

35
 lII. Conclusion

Basedon the foregoing,it is hereby

ORDERED that the applicationof petitionersVeronicaMontgomery-Costa,as President

of Local 372,District Council37, AFSCME,AFL-CIO, SheanicaDavis, as a displacedSchool

--r{É"*'-- --'

Aide and Parentof school-agedchildren,Marilyn Rosado,JeanetteSoto, Kumar Singh,Austin

Nichols, Clairicine Liriano, Fanny Moscoso,Myra Munoz, Luis Padilla, RobertoGuzman,

Edward Perez,(onbehalf of themselvesand otherssimilarly situated),to the extentthat they seek

a preliminary injunction, is granted. Saidinjunction shall remainin effect until this Court makes

a further determination on the cross-motionto dismissof respondentsthe City of New York,

Michael R. BloombeÍg, as Mayor of the City of New York, the Board of Educationof the City

School District of the City of New York, dba the Departmentof Education,Joel I. Klein, as

Agency,
Chancellorof the City SchoolDistrict of the City of New York, School Professionals

Agency; and it is further

and JamesA. Esseyas Presidentand CEO of SchoolsProfessionals

':1-*.
ORDERED that petitioners shall post a bond no later than close of businesson October

28,2009,in the amountof $779,000.00,representingthe potentialloss to the DOE from October

16,2009 until November 4, 2009,the datethe respondents'cross-motionshall be decided.

This constitutesthe Interim Decisionand Orderof the Court.

Dated:October27,2009
Edmead.J.S.C.

@.cånorEDflrEAD

36 --f+--