FILED: NEW YORK COUNTY CLERK 07/12/2011

NYSCEF DOC. NO. 86

INDEX NO. 107173/2011 RECEIVED NYSCEF: 07/12/2011

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 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 SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian of HARRY D. JORDAN, infant, KAVERY KAUL, 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 ALIYA CLUNIE, infant, Plaintiffs, - 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 of the City School District of the City of New York, Defendants, - and UPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of infants THOMAS MOREY and CLAIRE MOREY, MARTIN AARES, individually and as parent and natural guardian of infant SABINE BALOU-AARES, GABRIEL BAEZ, individually and as parent and natural guardian of infant CHRISTOPHER BAEZ, LISBETH DELOSSANTOS, individually and as parent and natural guardian of infant MIYAH MUZO, ELANA KILKENNY, individually and as parent and natural guardian of infant LIAM KILKENNY,

Index No. 107173/11 IAS Part 12 (Feinman, J.)

STATEMENT OF UNCONTESTED FACTS

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ELISSA KLEIN, individually and as parent and natural guardian of infant AVA KLEIN, REBECCA KUHAR, individually and as parent and natural guardian of infant ROBERT MAXWELL KUHAR, LATISHA SINGLETARY, individually and as parent and natural guardian of infant RANIYA GARRETT-WELLS, MICHAEL SUCHANEK, individually and as parent and natural guardian of infants SALLY SUCHANEK and AMELIA SUCHANEK, and DAVID TURNOFF, individually and as parent and natural guardian of infant HUNTER KIM-TURNOFF, Intervenor-Defendants.

Plaintiffs, through their attorney Phillips Nizer LLP, hereby submit their Statement of Uncontested Facts in support of their motion for partial summary judgment as to those portions of the Amended Complaint that arise from or relate to issues other than those addressing whether the content of the documents titled Revised Educational Impact Statement and Revised Building Utilization Plan comply with the Education Law and corresponding regulations. 1. On December 17, 2010, Defendant the Board of Education of the City School District of the City of New York, n/k/a the Panel on Educational Policy (PEP) published a document in English titled Public Notice (the Notice) concerning The Proposed Co-location of a New Public Charter School, Success Academy Charter School [(SACS)], with Existing Schools in the Brandeis Educational Campus [(Brandeis Campus)] . Among other things, the Notice specified that PEP would consider the proposal to co-locate SACS into the Brandeis Campus (the Co-Location Proposal) at a public meeting to be held on February 1, 2011; 2. On December 17, 2010, Defendants Chancellor of the City School District of the City of New York (the Chancellor) and/or New York City Department of Education (DOE) published documents titled Educational Impact Statement: The Proposed Co-

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location of a New Public Charter School, Success Academy Charter School, with Existing Schools in the Brandeis Educational Campus (EIS) and Building Utilization Plan (BUP) relating to the Co-Location Proposal; 3. On December 22, 2010, PEP published a document in English and Spanish titled Amended Public Notice concerning The Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools in the Brandeis Educational Campus; 4. On January 25, 2011, Defendants Chancellor and DOE held what they characterized as being the joint public hearing required by Education Law 2590-h[2a](d) (the Joint Hearing) relating to the Co-Location Proposal; 5. At the Joint Hearing, the Chancellor and/or DOE received public input regarding the Co-Location Proposal, including comments addressing purported defects and deficiencies in the Notice, the EIS, and the BUP; 6. On January 31, 2011, PEP published the public comment analysis (Public Comment Analysis) relating to the Co-Location Proposal; 7. As reflected in the Public Comment Analysis, the Chancellor and/or DOE received public input relating to the Co-Location Proposal prior to the February 1, 2011 PEP meeting, including comments addressing defects and deficiencies in the Notice, the EIS, and the BUP; 8. Notwithstanding the public input received by the Chancellor and/or DOE during either the Joint Hearing or otherwise (as reflected in the Public Comment Analysis), neither the Chancellor nor DOE attempted to revise the EIS or BUP prior to the February 1, 2011 PEP meeting;

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9. On February 1, 2011, PEP commenced a meeting at which, among other things, it considered the Co-Location Proposal, including the EIS and BUP; 10. On February 2, 2011, PEP voted to approve the Co-Location Proposal (the February PEP Vote); 11. On April 8, 2011, Plaintiffs herein commenced an Article 78 proceeding against Defendants herein (Steglich I) by filing a Verified Petition challenging the February PEP Vote; 12. On April 25, 2011, Defendants herein filed their Verified Answer in Steglich I opposing the Verified Petition; 13. On May 10, 2011, Plaintiffs herein filed their Verified Reply in Steglich I; 14. On June 1, 2011, in a letter to counsel for Plaintiffs herein, Defendants herein (a) effectively declared unilaterally they were abandoning the EIS and BUP by stating that Defendants had decided to revise the EIS and BUP (although they believed the notice, hearing, and disclosure process that culminated in the February PEP vote satisfied the requirements of the Education Law), and (b) represented they no longer would rely upon the February PEP Vote to implement the co-location of SACS into the Brandeis Campus; 15. On June 2, 2011, during a conference in Steglich I, counsel for Defendants herein reiterated in open court the declaration and representation made in their June 1, 2011 letter; 16. On June 6, 2011, Defendant PEP published a document in English titled Revised Notice concerning The Revised Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global

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Leaning Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417) in the Brandeis Educational Campus (the Revised Notice); 17. On June 6, 2011, Defendants Chancellor and/or DOE published documents titled Revised Educational Impact Statement: The Revised Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417) in the Brandeis Educational Campus (Revised EIS) and Revised Building Utilization Plan (Revised BUP); 18. On June 13, 2011, Defendant PEP published a document in English titled Amended Notice concerning The Revised Proposed Co-location of a New Public Charter School, Success Academy Charter School, with Existing Schools Louis D. Brandeis High School (03M470), The Urban Assembly School for Green Careers (03M402), The Global Leaning Collaborative (03M403), Innovation Diploma Plus (03M404), and Frank McCourt High School (03M417) in the Brandeis Educational Campus (the Amended Revised Notice); 19. On June 16, 2011, Defendant PEP completed the translation of the Amended Revised Notice into Spanish, and thereafter published the same; 20. On June 20, 2011, the Plaintiffs filed their Complaint seeking a Declaratory Judgment that, inter alia, the Revised EIS and Revised BUP were nullities; 21. On June 27, 2011, PEP relied upon the Revised EIS and Revised BUP to approve for the second time the Co-Location Proposal;

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22. On June 30, 2011, Plaintiffs filed their Amended Complaint seeking, inter alia, to have the June 27, 2011 PEP vote declared a nullity. Dated: New York, New York July 12, 2011 PHILLIPS NIZER LLP ___/s/ Jon Schuyler Brooks_____ Jon Schuyler Brooks Marc Andrew Landis Elizabeth A. Adinolfi 666 Fifth Avenue New York, New York 10103 (212) 977-9700 Attorney for Plaintiffs

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