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Friedman, J.P., Nardelli, Moskowitz, Freedman, Manzanet-Daniels, JJ.2 9 5 3M-2599ichael Mulgrew , a s P r e s i d e n tndex 101352/10of the United Federation ofTeachers, Local 2, et a l.,Petitioners-Respondents,

-against-The Board o f Education of the City SchoolDistrict of the City of New York, et al .,Respondents-Appellants.Council for School Supervisors andAdministrators,Amicus Curiae.

Michael A. Cardozo, Corpor ation Counsel, New York (Alan G. Kramsof counsel), for appellants.Stroock & Stroock & Lavan LLP, New York (Charles G. Moe rdler an dAlan Klinger of counsel), for respondents.David N. Grandwetter, Brooklyn, for amicus curiae.

Order, Supreme Court, New York County (Joan B. Lobis, J.),entered o n or about March 26, 2010, which granted the petition tothe extent of declaring that respondents fail ed to comply withthe requirements of Education Law 2590-h and that the votes ofthe Panel for Educational Policy (PEP) approving the phaseout orgrade truncation of 19 schools were null and void, ord eredrespondents to reissue the Educational Impact Statements (EIS)for the schools in compliance with Education Law 2590-h, andpermanently enjoined respondents from prohibiting enrollment inthe schools until t hey complied wi th Education Law 2590-h,

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unanimously affirmed, without costs.Petitioner United Federation of Teachers (UFT), w h i c h

represents approximately 120,000 educators working in New YorkCity public schools, including 87,000 teachers, has stan ding tobring this proceeding (through its pres ident) s eeking theannulment of responde nts' determin ation to phase out 19 schoolson the ground that respondents failed to comply with the pre-phaseout procedures mandated by Education Law 2590-h. Underthe well established test for associational and organizationalstanding set forth by the Court of Appeals, the UFT m u s tdemonstr ate (1) that some or all of its me mbers have standing tosue; (2) that the interes ts advanced in the case are sufficientlyrelated t o the UFT's organizatio nal purposes to satis fy the courtthat the UFT is an appropriate representative of those interests;and (3) that the participation of the individual members is notrequired to assert the claim or to afford the UFT complete relief(Matter of Dental Socy. of Stat e of N.Y. v Carey, 61 NY2d 330,332-334 [1984] [recognizing stand ing of unincorporatedassociation]; see also New York State Assn. of Nurse Anesthetistsv Novello, 2 NY3d 207, 211 [2004)).' The UFT easily sa tisfiesthis test as to each of the 19 subject schools. At a minimum,

'In view of the Court of Appeals' decision in Dental Socy.of State of N.Y. (supra), it is apparent that General AssociationLaw 12 is not construed to condition an unincorporatedassociation's stan ding on every individual member's havingstanding.25


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the UFT would derive standing from its chapter leader at eachschool, given that the chapter leader (or his or her designee)is, pursuant to respondents' regulations, a mandatory member ofthe institution's School Leadership Team, the body constitutingthe "school-based m anagement tea m" (SBMT) mandate d by section2590-h to participate in the considerati on of a propo sedphase out. In a d d i t i o n , those UFT m e mber s who a r e e mpl oyed a t theschools propos ed to be phased out have an interest in the matterthat would give them standing to sue. Further, the interestsinvolved -- school closure and the integrity of the schoolclosure process -- are germane to the UFT's organizationalpurpose, thereby making the union an appropriat e represent ativeof those i n t e r e s t s . F i n a l ly, the par t icipat i o n i n the proceed i ngof all interested individual members of the UFT is not necessaryto afford complete relief, since the petition seeks only tonullify the determinations to close the subject schools.Accordingly, based on the UFT's standing to advance the claimsasserted in the petition, we may proceed to consider the meritsof those claims.2

Whether the applicable standard of review is strictcompliance or substantial compliance, the court properly

2 The determinatio n that the UFT has standin g renders itunnecessary to consider t he standing of the remaining namedpetitioner s (see Saratoga County Chamber of Commerce v P a t a k i ,100 NY2d 801, 813 [2003], cert denied, 540 US 1017 [2003]).26


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determin ed that respond ents' EIS for each school failed to complywith the substanti ve requirement s of Education Law 2590-h(2-a)(b). In particular, each EIS fails to indicate, as required byEducation Law 2590-h(2-a)(b)(i), the "ramifications of suchschool closing o r significant change in school utilizatio n uponthe community" and, as required by 2590-h(2-a)(b)(ii), "theimpacts of the propos ed school closing or significant change inschool utilization to any affected students." Rather, each EISmerely indicates the number of school seats that wi ll beeliminated as a result of the proposed phaseout, and states thatthe seats w ill be re covered through the phase-in of other newschools or through available seats in exis ting schools in thedistrict or City. While the statute does not specify theinformation that an EIS should include to portra y the impact of aproposed phaseout on the community or the students, respond entsdo not discharge their obligation by providing nothing more thanboil e rpl a t e i nfor m a t i o n about s e a t avai l abil i ty. Gran t i ng thatthe statute affords respondents a considerable measure ofdiscretion in this regard, respondents abused that discretion bylimiting the informati on they provided to the obvious -- thatstudents at phased-out schools would be accommodated . at other

school s t o be d e t e r m i n e d . P l a i n ly, the Legisl a ture cont e mpl a t e dthat the school community would receive more informat ion thanthis from the EIS (see Assembly Mem in Support of L 2009, ch 345,

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2009 McKinney's Session Laws of NY, at 1713 ["This processrequires the Chancellor to develop and mak e public (an EIS) thatdetails the impacts of the proposed school closing or significantchange in s chool utilizati on"]). Even if each EIS providesadequate information regarding the ability of other schools inthe affected community district to accommodate affected students,as required by Education Law 2590-h(2-a)(b)(vi), it fails toprovide adequate information r egarding the ramifications of theproposed agency action on the community and the students. Thediscussion of one point does n ot obviate the need for adiscussion of the other.

The court also proper ly determine d that, in the case of eachsubject school, re spondents failed to "hold a joint publichearing with the impacted community council and [SENT]" asrequired by Education La w 2590-h(2-a) (d).' As t he court found,for the notion o f a joint hearing to have any meaning, themembers of t he community councils and SBMTs must be part of theprocess of structuring and conducting those hearings. Contra ryto respondents' contention, paragraph (d) of subdivision (2-a)requires them to include or consult wi th the community councilsregarding the joint public hearings for a ll propose d school

'For purposes of article 52-A of the Education Law (whichincludes section 2590-h), "[t]he term `community council' isdefined to mean the community district education council of acommunity district esta blished pursuant to se ction [2590-c] ofthis art icle" (Education Law 2590-a[4]).28


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phase outs, w i th no e xcepti o n for high school s . Re spo n d e n t s w e r ealso required to give the community councils notice of t he highschool hearings. Moreover, the court properly determined thatrespondent s failed to file a copy of each EIS with the impactedSBMT as required by Education Law 2590-h(2-a)(c).

Based on t he foregoing, the court proper ly annulled the PEPvotes (see generally Chinese Staff & Workers A s s n . v City of NewYork, 68 NY2d 359, 369 [1986]). Contrary to re sponde nts'contention, the statutory violations are not "so insignificant ast o be t o t a l ly i nco n s eque n t i a l" (cf. Roo s evel t Is . Residents A s s n .v Roo s evel t Is . Operati ng Corp., 7 Misc 3d 10 29[A), 2005 NY SlipOp 50811[U] [2005]).

M-2599ichael Mulgrew, e t a l . v The Boardof Education of the City School Districtof the City of New York, et al.Motion seeking leave to file amicuscuriae brief granted .THIS CONSTITUTES THE DECISION AN D ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 1, 2010

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