(FILED: NEW YORK COUNTY CLERK 05/26/2011) INDEX NO. 104300/2011 NYSCEP DOC. NO. 57 RECEIVED NYSCBP: 05/26/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LISA STEGLICH, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY Index No. 104300/11 CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMARI BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of IAS Part 12 (Feinman, J.) SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, AFFIRMATION IN infant, NYDIA JORDAN, individually and as parent and natural: SUPPORT OF guardian of HARRY D. JORDAN, infant, KAVERY KAUL, CONTINUING THE TRO individually and as parent and natural guardian of ASHOK KAUL, infant, RUBEN and GERALDINE LOPEZ, individually and as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULLIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALTYA CLUNIE, infant, Petitioners, -against- THE BOARD OF EDUCATION OF THE CITY SCHOOL, DISTRICT OF THE CITY OF NEW YORK a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of the City School District of the City of New York, Respondents, -and- SUCCESS ACADEMY CHARTER SCHOOL a/k/a UPPER WEST SUCCESS ACADEMY, MATTHEW MOREY, individually and as parent and natural guardian of infants THOMAS MOREY and CLAIRE MOREY, et al., Intervenor-Respondents. naso2i.2JON SCHUYLER BROOKS, an attomey admitted to practice in the state of New York, hereby affirms the following under the penalty of perjury: 1, Lama partner at Phillips Nizer LLP, attorney for Petitioners in this Article 78 proceeding that seeks, inter alia, to annul the February 2, 2011 vote of the Board of Education of the City School District of the City of New York (n/k/a the Panel for Educational Policy) (“PEP”) approving the proposed co-location of the Success Academy Charter School (“SACS”), a planned charter school serving kindergarten and elementary school students, into the Brandeis Educational Campus (M470) (“Brandeis Campus”), a stand-alone single building that currently houses six public high schools and other programs.’ 2. I submit this affirmation, per the May 18, 2011 direction of Justice Carol Edmead, in reply to the supplemental papers submitted by Respondents and Intevenor-Respondents (“Intervenors”) on May 19, 2011 to “vacate” the temporary restraining order (the “TRO”) issued by Justice Edmead on May 12, 2011, and also in support of continuing the TRO. * Petitioners recently learned that, in addition to the five high schools discussed in the Petition, there is, another high school in the Brandeis Campus: the Brandeis Young Adult Borough Center ("YABC’). According to the New York City Department of Education, YABCs are evening academic programs designed to meet the needs of high school students who might be considering dropping out because they are behind or because they have adult responsibilities that make attending school in the daytime difficult. Students graduate with a diploma from their home school after they have carned all of their credits and passed all of the required exams while attending the YABC. Students who are registered in a YABC program remain assigned, for all accountability measures, to their sending school, Attendance is strictly monitored and documented by the YABC program. http:/schools.nyc.gov/ChoicesEnrollment/AlternativesHS/YoungAdult/default.htm. In order to be eligible to attend a YABC, a student must be “at least 17.5 years old, have at least 17 credits, and have been in high school four years.” Ibid. ‘The Brandeis YABC has its own ATS database name, 03MS77, an allocation for a parent coordinator, a street parking placard allocation (2) (2011); and a high school code (334039) for college applications. Brandeis YABC even shows up on a DOE list of school library codes. Petitioners, therefore, intend to file an Amended Petition setting forth Respondents” failure to address the Brandeis, YABC and its students’ needs in any aspect of the co-location process naso2i.2 2Preliminary Statement 3. The TRO enjoins Respondents — PEP, the New York City Department of Education (“DOE”), and the Chancellor of the City School District of the City of New York (the “Chancellor”) ‘from (i) performing any and all construction at the Brandeis Campus relating to the co-location there of Success Academy Charter School, including construction of an additional cafeteria for the exclusive use of SACS; and (ii) taking any other actions at the Brandeis Campus relating to the SACS co-location.” TRO at p4. 4, The TRO also includes the following language: “Notwithstanding this Court’s granting of the [TRO] application, the Court is open to further application to revisit and/or modify this order.” Id. at p.5. As Justice Edmead subsequently explained to counsel, the purpose of that language was to allow the parties an opportunity to present new factual evidence, 5. In flagrant disregard of that language, and contrary to representations made during the May 18, 2011 conference call between Justice Edmead and counsel, Respondents and Intervenors seek not only “to revisit and/or modify” the TRO, they seek to vacate it, and without the motion required by CPLR R.2215. See Affirmation of Charles Orsland, dated May 19, 2011 (Orsland Aff.”), 3; Affidavit of Jennifer Sedlis, sworn to May 19, 2011 (“Sedlis Aff”), {1 ‘Once again, Respondents failed to comply with required procedure. 6. Furthermore, Respondents and Intervenors fail to limit their supplemental papers to the presentation of new factual evidence the Court might consider (o revisit and/or modify the TRO. Instead, they make a full-blown assault on Petitioners’ motion for a preliminary injunction (the “Preliminary Injunction Motion”) even before this Court has established a briefing schedule or Return Date. See TRO at p.5. All such premature arguments should not be considered by the Court at this time, naso2i.2 3The TRO remains necessary and appropriate 7. Nothing in the papers submitted by Respondents or Intervenor-Respondents changes the fact that Respondents, by their own admission, have failed in multiple ways to comply with the requirements for a co-location set forth in New York Education Law §§ 2590-h and 2853, Chancellor's Regulation A-190, and the PEP By-laws. Consequently, the TRO should remain in effect at least until this Court has heard and determined Petitioners’ motion 8. Furthermore, even assuming arguendo the Court excuses Respondents’ failures and upholds the PEP vote, DOE does not now have the authority to begin construction in the building because the PEP vote does not take effect until the current school year ends. Educ. L. § 2590-h [2-a](e). At the very least, therefore, the TRO should remain in effect through the end of the current school year: June 28, 2011 9, Moreover, after hearing extensive oral argument (lasting nearly two hours), Justice Edmead determined Petitioners’ application for a TRO satisfied each element of the standard test for injunctive relief: (1) a likelihood of ultimate success on the merits; (2) the prospect of imeparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in its favor. See Doe v. Axelrod, 73 N-Y.2d 748, 750 (1988); see also Metro. Steel Indus., Ine. v. Perini Corp., 855 N.Y 8.24 441, 442 (1" Dep't 2008). Neither Respondents nor Intervenor-Respondents introduce new factual evidence to justify reversing that determination. A. Likelihood of Success on the Merits 10. Respondents and Intervenors attempt to renew their arguments that Petitioners” cannot succeed as a matter of law because the Supreme Court was divested of jurisdiction to hear claims related to those co-locations taking place within New York City. See Orsland Aff. {15- 17; Intervenors’ Memorandum of Law, dated May 19, 2011 (Int. 5/19/11 Mem.”) at p. 13-14, naso2i.2 4