Affirmation of Jon Schuyler Brooks in Support of Continuing the TRO

8/6/2019 Affirmation of Jon Schuyler Brooks in Support of Continuing the TRO

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ILED: NEW YORK COUNTY CLERK OS/26/20111CEF DOC. NO. 57

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK-------------------------------------------------------------------------------- J(LISA STEGLICH, individually and as parent and natural guardian :of ALEXANDER HERLIHY, infant, RIC CHERWIN,individually and as parent and natural guardian of MARLEYCHERWIN, infant, CAROL BARKER, individually and as parentand natural guardian of OMARI BROWN, infant, GINADEMETRIUS, individually and as parent and natural guardian ofSEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually:and as parent and natural guardian of MARGARET THOMAS,infant, NYDIA JORDAN, individually and as parent and naturalguardian of HARRY D. JORDAN, infant, KAVERY KAUL,individually and as parent and natural guardian of ASHOK KAUL, :infant, RUBEN and GERALDINE LOPEZ, individually and asparents and natural guardians of SHANE LOPEZ, infant,MADELINE OLMEDA, individually and as parent and naturalguardian of CRISTINA JULLIA CRUZ, infant, LAZARAQUINONES, individually and as parent and natural guardian ofDORIS ALCANTARA, infant, and MARILYNN SARJEANT,individually and as parent and natural guardian of ALlY ACLUNIE, infant,

Petitioners,-against-

THE BOARD OF EDUCATION OF THE CITY SCHOOLDISTRICT OF THE CITY OF NEW YORK aIkIa THE PANELFOR EDUCATIONAL POLICY, THE DEPARTMENT OFEDUCATION OF THE CITY OF NEW YORK, and DENNIS M.WALCOTT, as Chancellor-Designate of the City School Districtof the City of New York,

Respondents,-and-

SUCCESS ACADEMY CHARTER SCHOOL aIkIa UPPERWEST SUCCESS ACADEMY, MATTHEW MOREY,individually and as parent and natural guardian of infantsTHOMAS MOREY and CLAIRE MOREY, et al.,

Intervenor-Respondents.-------------------------------------------------------------------------------- J(

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INDEX NO. 104300/2RECEIVED NYSCEF: OS/26/

Index No. 104300111lAS Part 12 (Feinman, J.)AFFIRMATION INSUPPORT OFCONTINUING THE TRO


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JON SCHUYLER BROOKS, an attorney admitted to practice in the state of New York,hereby affirms the following under the penalty of perjury:

1. I am a partner at Phillips Nizer LLP, attorney for Petitioners in this Article 78proceeding that seeks, inter alia, to annul the February 2, 2011 vote of the Board of Education ofthe City School District of the City of New York (nlkla 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 BrandeisEducational Campus (M470) ("Brandeis Campus"), a stand-alone single building that currently

houses six public high schools and other programs.1

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") issuedby Justice Edmead on May 12,2011, and also in support of continuing the TRO.

1 Petitioners recently learned that, in addition to the five high schools discussed in the Petition, there isanother 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 whomight be considering dropping out because they are behind or because they have adultresponsibilities that make attending school in the daytime difficult. Students graduatewith a diploma from their home school after they have earned all of their credits andpassed all of the required exams while attending the YABC. Students who are registeredin a YABC program remain assigned, for all accountability measures, to their sendingschool. Attendance is strictly monitored and documented by the YABC program.

http://schools.nyc.gov/ChoicesEnrollmentlAltemativesHSNoungAdultldefault.htm. In order tobe 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, 03M577, an allocation for a parentcoordinator, a street parking placard allocation (2) (2011); and a high school code (334039) for collegeapplications. 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 BrandeisYABC and its students' needs in any aspect of the co-location process.1145921.2 2
http://schools.nyc.gov/ChoicesEnrollmentlAltemativesHSNoungAdultldefault.htm.http://schools.nyc.gov/ChoicesEnrollmentlAltemativesHSNoungAdultldefault.htm.


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Preliminary Statement3. 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 tothe co-location there of Success Academy Charter School, including construction of anadditional cafeteria for the exclusive use of SACS; and (ii) taking any other actions at theBrandeis Campus relating to the SACS co-location." TRO at pA.

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/ormodify this order." [d. at p.5. As Justice Edmead subsequently explained to counsel, thepurpose 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 duringthe May 18,2011 conference call between Justice Edmead and counsel, Respondents andIntervenors seek not only "to revisit and/or modify" the TRO, they seek to vacate it, and withoutthe motion required by CPLR R.22l5. See Affirmation of Charles Orsland, dated May 19,2011("Orsland Aff."), 'J [ 3; Affidavit of Jennifer Sedlis, sworn to May 19, 2011 ("Sedlis Aff."), 'J [ 1.Once again, Respondents failed to comply with required procedure.

6. Furthermore, Respondents and Intervenors fail to limit their supplemental papersto the presentation of new factual evidence the Court might consider to revisit and/or modify theTRO. 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 scheduleor Return Date. See TRO at p.5. All such premature arguments should not be considered by theCourt at this time.

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The TRO remains necessary and appropriate7. Nothing in the papers submitted by Respondents or Intervenor-Respondents

changes the fact that Respondents, by their own admission, have failed in multiple ways tocomply with the requirements for a co-location set forth in New York Education Law 2590-hand 2853, Chancellor's Regulation A-190, and the PEP By-laws. Consequently, the TRO shouldremain in effect at least until this Court has heard and determined Petitioners' motion .

8. Furthermore, even assuming arguendo the Court excuses Respondents' failuresand 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 ofthe 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 thestandard test for injunctive relief: (1) a likelihood of ultimate success on the merits; (2) theprospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equitiestipping in its favor. See Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988); see also Metro. SteelIndus., Inc. v. Perini Corp., 855 N.Y.S.2d 441,442 (18tDep't 2008). Neither Respondents norIntervenor-Respondents introduce new factual evidence to justify reversing that determination.

A. Likelihood of Success on the Merits10. 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 hearclaims 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.

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11. Although this attempt to re-argue should not be permitted, for the sake of therecord it should be noted Petitioners already refuted this argument not only during oral argument,but also in their Memorandum of Law in Reply to the Verified Answer, dated May 10, 2011.For the convenience of the Court, that refutation is summarized here.

12. There is clear, binding precedent in the First Department for this Court's exerciseof its jurisdiction to hear and decide challenges to PEP votes concerning "significant changes toschool utilization," such as co-locations of charter schools into public school buildings. SeeMulgrew v. Bd. of Educ., 28 Misc.3d 204 (Sup. Ct. New York Co.), a!f'd, 75 A.D.3d 412 (l8t

Dept 2010). The claim that the amendment to the Education Law enacted subsequent toMulgrew (the "2010 Amendment") stripped this Court of its jurisdiction over such challenges,vested exclusive original jurisdiction in the Commissioner, and required Petitioners to exhausttheir administrative remedies prior to commencing this Article 78 proceeding flies in the face ofboth the plain language and the legislative history of the 2010 Amendment.

13. The 2010 Amendment originated as Assembly Bill No. 11310 ("A. 11310"). Itwas "introduced, passed and signed in one day." New York State Legislative Annual 2010,Governor's Program Memorandum #269 n.1. Itwas driven primarily by New York State's effortto "win" dollars from the federal "Race to the Top" program." See generally, Assembly DebateTranscripts, 2010 Chap. 101 ("Assembly Tr."); Senate Debate Transcripts, 2010 Chap. 101("Senate Tr.,,).2

14. The plain language of he 2010 Amendment in no way divests this Court ofjurisdiction to hear Petitioners' claims:

2 For the convenience of the Court, a true and correct copy of each of the following documents issubmitted herewith: A.11310; the Assembly Memorandum in Support of Legislation; the 2010Legislative Annual relating to Chapter 101 of 2010; the Assembly Debate Transcripts; and the SenateDebate Transcripts.1145921.2 5


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Notwithstanding any provision to the contrary, in a city schooldistrict in a city having a population of one million or moreinhabitants, the determination to locate or co-locate a charterschool within a public school building and the implementation ofand compliance with the building usage plan ... may be appealedto the commissioner pursuant to section three hundred ten of thischapter.

A.1l3l0 15 at p.9:33-43 (emphasis added).15. Respondents and Intervenors rewrite the statute when they argue that "may" does

not mean "may"; that "may" really means "must"; and that this Court, in effect, should rewritethe language of the statute so that it reads "may be appealed only to the commissioner." Their

argument flies in the face of blackletter principles and copious case law regarding the rules ofstatutory interpretation that hold "may" is permissive and means "may." 3

16. For example, the Fourth Department has recently rejected the arguments made byRespondents and Intervenors in a similar case where, as here, the petitioner filed that proceedingwithout first pursuing an administrative appeal. As here, the municipal respondents in that caseargued that the "may appeal administratively" language of the governing statute was mandatory,and that petitioner thus failed to exhaust its administrative remedies. The Fourth Departmentrejected held that:

Contrary to the further contention of respondent, the courtproperly denied its motion to dismiss the petition on the groundthat petitioners failed to exhaust their administrative remedies.Buffalo City Code 511-125(B), which pertain to the ZoningBoard of Appeals, provides: "In case it is alleged by an appellantthat there is error of misinterpretation in any order, requirement,decision, grant or refusal made by ... [an] administrative officialhaving authority to issue licenses or permits in the carrying out ofenforcement of the provisions of ... chapter [511], an appeal may

3 During oral argument on the TRO application, counsel for Respondents and Intervenors argued the 2010Amendment divested the Supreme Court of jurisdiction. Tr. at 34:23-42: 11. Justice Edmead - without the benefitof having read Petitioners' Reply Memo - asked presciently, ''This new rule, does it say one must? Is it a shall or amay?" Hear'g Tr. at 35:9-10. A true and correct copy of the Transcript of the oral argument is submitted herewith.1145921.2 6


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be filed in the manner hereinbefore specified and a decision shallbe made by the [Zoning] Board of Appeals" (emphasis added).Because the language of that provision is permissive rather thanmandatory, petitioners were not required to file such an appeal[with the ZBA].

Custom Topsoil, Inc. v. City of Buffalo, 81 AD.3d l363, l365 (4th Dept 2011) (ellipses, brackets,and standard italics in original; bold italics added).

17. This rule of statutory construction is hardly novel. The First Department rejectedsimilar contentions, along with the "primary jurisdiction" argument, almost two decades ago.

Even though administrative action is often desirable, resort to suchaction is not a prerequisite to litigation in court. The statute isclearly couched in permissive terms, providing in pertinent partthat any person "may file" with the commission a complaintsetting forth alleged violations of the Shipping Act (US Code, tit46, 821, subd [aD. Exhaustion of administrative remedies isthus not a prerequisite to this action. This is especially truewhere, as here, the questions involved are generally legal ones ....Where the technical expertise and special discretion of thecommission are not otherwise required, a court is competent tomake a determination of a nontechnical nature based on anuncomplicated set of facts. This renders inapplicable the doctrineof primary administrative jurisdiction.

Triomphe Disc Corp. v. Chilean Line, 93 AD.2d 228,231 (I" Dept 1983) (emphasis added).18. Respondents and Intervenors can find no support for their arguments in the 2010

Amendment's legislative history. To the contrary, the legislative history supports a constructionthat "may" is permissive, not mandatory. For example, the Assembly Memorandum in Supportof Legislation for A1l31 0 (the "Assembly Memo") includes the following statement: "Anexpedited appeal may be made regarding the determination to locate or co-locate a charter schoolin a public school building and the implementation of and compliance with a building utilization

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plan." Assembly Memo at 2 (emphasis added); accord, Governor's Program Memorandum

19. Prior to the 2010 Amendment, there apparently was either a concern or beliefthatPEP determinations regarding co-locations could not be appealed to the commissioner pursuantto Education Law 310, as demonstrated by the first clause of the "may appeal" language:"Notwithstanding any provision to the contrary .... " A1l3l0 15 at p. 9:33. The 2010Amendment, rather than curtailing the available options for review, provided an alternative.

20. The "co-location process" imposed upon the Respondents by the 2010

Amendment was intended to enhance parental and community involvement in the co-locationdetermination. "This legislation creates, we think, enough of a plan, a building plan and aconsultation process with parents, that it will make this kind of transition smoother and easierand allow for true parental involvement .... " Assembly Tr. at 73 (Remarks of Member ofAssembly Nolan). That process must include the ability to challenge its outcome, asdemonstrated by Mulgrew. The process, therefore, shows the remedial nature of the applicableportions of the 2010 Amendment.

[A] remedial statute [] is to be liberally construed infavor ofaffording judicial review (see, Matter of Great E. Mall v . Condon,36 N.Y.2d 544,548; Matter of Lieberman v. Johnson, 60 AD.2d933, 934). Therefore, we should not read into the Purcell Act byimplication any legislative intent to remove the traditionaljurisdiction of Supreme Court to review real property taxassessments under Real Property Tax Law article 7.

Delaware &Hudson Railway Co. v.McDonald, 126 AD.2d 29,34 (3d Dep't), appeal dismissed,70 N.Y.2d 693 (1987) (emphases added) (reversing dismissal of petition for lack of subjectmatter jurisdiction). As in Delaware &Hudson, this Court should not read into the 2010

4 The exact same language appears also in the Senate Memo.

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Amendment "by implication [a] legislative intent to remove the traditional jurisdiction of theSupreme Court."

21. In the legislative debate on the 2010 Amendment, no Member of the Assemblynor a single State Senator suggested - let alone stated - that the language clarifying that a co-location determination by PEP may be appealed to the commissioner divested the courts ofjurisdiction to hear challenges. See generally, Assembly Transcripts and Senate Transcripts.Such silence is especially instructive given that the Legislature was well aware of the Mulgrewdecision, and recognized the critical role the courts play in ensuring that these Respondents

comply with the letter and purpose ofthe Education Law.Past behavior is a pretty good indicator of future behavior[,]

and the attempt, the very noble attempt, to put in place a processthat would force a public process [with] more transparency in theco-location is reminiscent, to me, of the same type of process thatwas put in place in our school governance around the issue ofschool closures. Communities indicated that there were 19 schoolsthat were being closed without any real process. The Departmentof Education said, "Oh, no, no, no. We followed every step, wehad these hearings." [PEP, the DOE, and the Chancellor] weretaken to court, and the [Mulgrew] court rejected as a sham - as anoutright sham - the process that was engaged in by the Departmentof Education and voided those closures.I believe we are likely to see the same [with] forced co-locations.

Assembly Tr. at 106 (Remarks of Member of Assembly Glick). Rather than supporting claimthat the Legislature intended to prevent future co-location decisions in the vein of Mulgrew whenit passed the 2010 Amendment, the record amply demonstrates Legislative support for theoutcome achieved in Mulgrew.

22. What is perhaps most disturbing is that the construction urged by Respondentsimplicates serious issues of due process and equal protection. The "may appeal to thecommissioner" language applies only to those co-location determinations made by PEP and

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affecting the City School District. Inother words, co-location determinations made by any otherschool board in the State of New York may be challenged in Supreme Court by an Article 78proceeding. This Court cannot construe the 2010 Amendment as depriving some New Yorkersof the right to petition the courts to redress their grievances on the basis of mere geography.

23. Furthermore, even assuming arguendo the 2010 Amendment vested exclusiveoriginal jurisdiction of certain appeals in the Commissioner, Respondents concede suchexclusivity does not extend to challenges "involving only questions of law, where the issue iswhether school officials acted in violation of statute." Opp. Mem. at 6 (citing Lazette v . Bd. of

Educ., 35 N.Y.2d 272,278 (1974)). This Article 78 proceeding involves only such questions,and raises precisely that issue.

24. Moreover, one of the questions of law raised by the Verified Petition is whetherRespondents complied with the State and City Environmental Quality Review Act (respectively,"SEQRA" and "CEQRA"). The Commissioner admits he lacks jurisdiction to hear and decidechallenges that go beyond issues of compliance with the Education Law. See Frequently AskedQuestions Concerning Appeals to the Commissioner of Education ("FAQ"), Question No. 14(emphasis added), available at http://www.counsel.nysed.gov/appeals/faqs.htm. Respondentsconcede this Article 78 proceeding raises issues unrelated to the Education Law. Opp. Mem. at28-30. Those issues are beyond the purview of the Commissioner. Accordingly, "such claimsmust instead be brought before a court."

25. The Verified Petition and Verified Reply, along with the supporting Affidavitsand Memoranda of Law, explain at great length and in great detail the multiple failures byRespondents to comply with the provisions ofthe Education Law, the Chancellor's Regulations,and the PEP By-Laws. Petitioners respectfully refer the Court to its those papers which

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demonstrate that Respondents have not complied, strictly or substantially, with their statutoryobligations.

26. Respondents concede the instances of non-compliance, but argue they nonethelesscomplied "enough." "Enough" is not the standard Respondents must meet. The 2010Amendment was a "bargain" between charter school advocates and the State: the "cap" on thenumber of charter schools in the State (and City) will be raised significantly in exchange/or amore rigorous process of public notice and public involvement surrounding any proposed co-location, especially in the City School District. Assembly Tr. at 73. This "bargain" supports and

in no way overturns the Mulgrew court's determination that Respondents must satisfy therigorous standard of "strict compliance."

27. Even assuming arguendo that "substantial" compliance is the appropriatestandard, Respondents have failed to meet it. For example, Respondents substitute solicitingfeedback from principals for involving and considering feedback from the School LeadershipTeams, and substituted filing the EIS and BUP with principals for the statutorily required filingwith SLTs. Opp. Mem. at 14,24. Although principals are mandatory members of SLTs, theyare not the totality of the SLTs. Indeed, they are employees and agents of the DOE.

28. Respondents admit also that the Notice filed on December 17,2010 did notcontain the statutorily-required minimum information. They claim a late-filed amendment curedthe admitted defect. That is not compliance.

29. Respondents concede they did not issue an environmental impact statement.They argue the co-location is a SEQRNCEQR "Type II" project and, therefore, noenvironmental impact statement was necessary. SEQRA, however, specifically excludes fromType II projects "changes in use related to [school] closings. 6 NYCRR 617.5(c)(8)

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(emphasis added). The co-location of a charter school is statutorily-defined as a "significantchange in utilization" of a public school building. Educ. L. 2590-h [2-a](a). Consequently, theco-location is not and cannot be a Type II project. Respondents, therefore, were required toprepare and issue an environmental impact statement. They failed to do so, and admit it.

30. The only new factual "evidence" submitted by Respondents or Intervenors is theAffidavit of Bernard Orlan, sworn to May 19, 2011 ("Orland Aff."), concerning the asbestosremoval program associated with the co-location of SACS into the Brandeis Campus.'

31. Mr. Orlan's statements, however, are little more than generalities. As co-chair of

this firm's environmental practice, Ican state from knowledge and experience his statementsignore the logistical difficulty - if not impossibility - of performing proper asbestos abatementsin any occupied building, let alone in a public school building occupied by a highly-susceptiblepopulation, notwithstanding regulations or guidelines. Itis necessary, for example, to isolatemechanical and ventilation systems, and properly monitor the integrity of such isolations, a taskfraught with risk given that asbestos-removal work will be interrupted each day when schoolbegins, and that the asbestos-removal work is immediately adjacent to the existing cafeteria usedby all 1800 or so Brandeis Campus students. Even the best licensed asbestos-removalcontractors occasionally fail to comply with regulations.

B. Irreparable Injury32. Intervenors claim that Petitioners have not demonstrated irreparable harm.

Intervenors ignore that "[w]here, as here, a regulatory regime is implemented to ensurecommunity involvement in government decision-making or to protect the public from potentialharm, the government's failure to follow the law, in itself, constitutes irreparable harm to the

5 All of the "parent" affidavits submitted by Intervenors re-iterate the points raised by the "parent" affidavitspreviously submitted by Intervenors, and therefore present no new factual evidence.1145921.2 12


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community." Stop BHOD v. City of New York, 2009 N.Y. Slip Op. 50461(U), at *13 (Sup. Ct.Kings County, Mar. 13,2009) (granting preliminary injunction, finding "petitioners will beirreparably harmed by the commencement of expansion of the BHOD without the Cityrespondents conducting the legally mandated reviews which are designed to protect thecommunity and to allow community participation and review in significant land use actions").Petitioners have established irreparable harm as a matter of law.

C. Balance of Equities33. While Petitioners are also parents and understand the difficulty and stress

associated with navigating the public school system in New York City, the affidavits submittedby Intervenors fall short of demonstrating harm, much less irreparable harm, sufficient to tip theequities in their favor.

34. It cannot be emphasized strongly enough that nothing prevents SACS fromopening its program in another location, one that will be able to accommodate the full studentbody approved in the charter, as opposed to the reduced number necessitated by spaceconstraints in the Brandeis Campus. There is no requirement that a charter school co-locate witha public school. SACS easily could make other arrangements for the 2011-2012 school yearwithout even putting a noticeable dent in the $3 million cash-on-hand held by its parent, theSuccess Charter Network.

35. Intervenors, no doubt unwittingly, place Respondents in a precarious position.Intervenors claim that the children who currently anticipate attending SACS will be irreparablyharmed if they must attend their zoned school. See Int. Mem. pp. 10-11. Respondents have aHobson's choice: agree with Intervenors and tacitly admit they are currently inflictingirreparable harm on the hundreds of children who attend those zoned schools; or disagree and

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admit that, while the situation in the zoned schools may not be ideal, it does not constituteirreparable harm.

36. Respondents describe the "irreparable harm" as "184 families will have toscramble to find last minute alternate schools." Orsland Aff. 'J [ 6. There is no statement thatthese children will not be able to go to school. Rather, Respondents state that "these childrenwill likely be consigned to the lower performing schools in the district." Id. 'J [ 7. Again, to findthat option constitutes "irreparable harm" is finding that Respondents are inflicting irreparableharm on hundreds, if not thousands, of children every day.

37. Respondents also refer to the harm Intervenors face as "the enormous anxiety ofnot knowing what school their children will be attending in less than 90 days." Ibid. To describea temporary period of uncertainty, and the ensuing anxiety it causes, as irreparable harmtransforms any litigation into a source of irreparable harm.

38. Moreover, while the Affidavits submitted by the parents are no doubt sincere andheartfelt, they likewise fail to demonstrate irreparable harm. Instead, most are little more thanspeculation that if their children do not attend SACS, they have no future. See. e.g., Affidavit ofGrace Cepeda ("I worry everyday about this. My son Juelz L. Bell dreams of building robots.His dream would end if Upper Success Academy doesn't. [sic] 1know for a fact his dreamwould not come truth if he goes to his zoned failing school."); Affidavit of Mark Lamb ("Itseems like-minded, but misinformed parents (our neighbors) and some politicians have gone outof their way to shut the door on the only hope for our daughter to receive an acceptableelementary education.").

39. Other parents speak more of lost opportunity, inconvenience or annoyance ratherthan irreparable harm. See. e.g., Affidavit of Yovanka Bylander ("I am deeply resentful that

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people who don't represent my children's interests are trying to deny them a wonderfulopportunity."); Affidavit of Brandon England ("we have found the program at PS 166 is not asenriching and challenging as we had anticipated. In order to continue our daughter's educationprogress we have to provide supplemental lessons at home. In the meantime, we have since beenrezoned permanently for PS 452. In a city where the educational offerings are supposed to bestellar, we are not pleased with the current choices for our family."); Affidavit of Robert Kuhar("After touring Success, the public schools pale in comparison."); Affidavit of John Marchant("Also, with PS 163 13 blocks north ofPS 9 (where we have a 6 year old) we cannot cope

logistically at drop off and pick up, especially with our other two children to consider.");Affidavit of Jill Zibrow ("It is eminently unfair that because of an arbitrary zone change, and anapartment on the wrong side of the street, that I cannot send my son to a top school (or at leastone that is not failing).").

40. As parents of students, Petitioners understand parents want to send their child to a"top school." The parents of the children accepted at SACS will have the ability to send theirchildren to SACS regardless of this Article 78 proceeding if SACS simply would find anotherlocation for the upcoming school year, an option it can afford given the $3 million "profit" its"not-for-profit" parent, the Success Charter Network, has sitting in the bank.

41. Given the factual and financial ability of SACS to find another location, theIntervenors face no risk of real harm -let alone irreparable harm - as a result of this Article 78proceeding.

42. By contrast, the community, including Petitioners, will suffer very real irreparableharm as a result of Respondents' circumvention of legal requirements - i.e., their failures tocomply with and satisfy the statutorily-mandated process for co-locating charter schools - tips

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the balance of the equities in Petitioners' favor and warrants maintaining the TRO (and also aninjunction pending compliance with the legally mandated process). See, e.g., Stop BHOD, 2009N.Y. Slip Op. 50461(U), at *13 (enjoining the City respondents from proceeding with expansionplans for failure to comply with ULURP).

43. For the foregoing reasons, Petitioners respectfully request that the Court continuethe TRO without modification.Dated: New York, New York

May 26,2011

/s/Jon Schuyler Brooks

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Documents

Affirmation of Jon Schuyler Brooks in Support of Continuing the TRO