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STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ______________________________________________________ SCHOOL DISTRICTS, Inc., and THE MEMBERS OF THE BOARDS OF EDUCATION, OF THE ALBANY CITY SCHOOL DISTRICT, BEACON CITY SCHOOL DISTRICT, BINGHAMTON CITY SCHOOL DISTRICT, COHOES CITY SCHOOL DISTRICT, CORNING CITY ATTORNEY’S DISTRICT, DUNKIRK CITY SCHOOL DISTRICT, AFFIRMATION GLENS FALLS CITY SCHOOL DISTRICT, JAMESTOWN CITY SCHOOL DISTRICT, KINGSTON CITY SCHOOL DISTRICT, MT.VERNON CITY SCHOOL DISTRICT, RJI NO. 01-05-081545 NEWBURGH CITY SCHOOL DISTRICT, NIAGARA Index No. 1711-05 FALLS CITY SCHOOL DISTRICT, NORTH TONAWANDA CITY SCHOOL DISTRICT, SALAMANCA CITY SCHOOL DISTRICT, SCHENECTADY CITY SCHOOL DISTRICT, and TONAWANDA CITY SCHOOL DISTRICT, in their official, individual and taxpayer capacities,
Plaintiffs, -against- Index No. 1711-05 STATE OF NEW YORK,
Defendant. _________________________________________________________
ROBERT E. BIGGERSTAFF, an attorney admitted to practice in the Courts of the State of New York, affirms the following under penalties of perjury: 1. I am an attorney in good standing admitted to practice before the Courts of this State, and I represent Plaintiffs in the above-captioned proceeding. I also serve as General Counsel and Executive Director of the New York State Association of Small City School Districts and as such I am fully familiar with all pleadings and proceedings had in this action. 2. I respectfully request that oral argument be scheduled on Defendant’s motion on the return date or as soon thereafter as is convenient to the court pursuant to section 202.8(d) of the Uniform Rules of the N.Y.S. Trial Courts. 3. I submit this affirmation in opposition to Defendant’s motion to dismiss - - a motion based on an inaccurate statement of the applicable law as well as a mischaracterization of Plaintiffs’ Complaint. BACKGROUND 4. In 1995 and 2003, the New York State Court of Appeals issued two decisions in Campaign for Fiscal Equity et al. v. New York State et al. (CFE I [86 N.Y.2d 307] and CFE II [100 N.Y.2d 893], respectively), setting forth a definition of what constitutes the sound basic education required under New York State Constitution Article XI, section 1. The Court established a basis on which the educational funding system as it relates to all public school districts in the state must be measured. The Court required a review of educational inputs and outputs to determine whether or not the system provided an opportunity for all children to obtain a meaningful high school education, i.e. a sound basic education. It then placed the responsibility of maintaining a funding system to provide that opportunity squarely on the States’ shoulders. THE COMPLAINT 5. On or about March 18, 2005, Plaintiffs filed and served a summons and complaint commencing this action against Defendant. Annexed hereto as Exhibit "A" are true and correct copies of the Summons and Complaint. 6. This suit challenges the constitutionality, in whole or in part, of the system of education funding provided by Defendant to the: Albany City School District, Beacon City School District, Binghamton City School District, Cohoes City School District, Corning City School District, Dunkirk City School District, Glens Falls City School District, Jamestown City School District, Kingston City School District, Mt. Vernon City School District, Newburgh City School District, Niagara Falls City School District, North Tonawanda City School District, Salamanca City School District, Schenectady City School District and Tonawanda City School District, (collectively referred to as "Plaintiffs’ Districts"). MOTION TO DISMISS 7. On or about June 16, 2005, Defendant moved to dismiss the Complaint. Defendant’s motion seeks dismissal on three (3) grounds. First, Defendant claims that Plaintiffs lack capacity to sue. Second, Defendant claims that Plaintiffs’ suit is nothing more than a gripe over disparities in funding. Third, Defendant claims that Plaintiffs’ Complaint lacks the requisite specificity. 8. As thoroughly set forth in Plaintiffs’ Memorandum of Law, Defendant’s lack of capacity and specificity arguments fail as a matter of law and fact, and Defendant’s "funding gripe" argument is patently deficient because it is based on a mischaracterization and/or misunderstanding of Plaintiffs’ claims. AMENDED COMPLAINT 9. Contemporaneous with the service of Plaintiffs’ opposition papers, Plaintiffs filed and served an Amended Complaint for Declaratory and Injunctive Relief. The Amended Complaint named each board member individually, added the members of the boards of education of Middletown City School District and Poughkeepsie City School District and added parents of children attending Albany City School District, Beacon City School District, Jamestown City School District and Newburgh City School District as additional plaintiffs. This was done to address Defendant’s objection to capacity to sue. 10. The Amended Complaint added George E. Pataki, Governor, and Andrew S. Eristoff, Commissioner of the Department of Taxation and Finance, as additional defendants. This was done to buttress Plaintiffs’ status as citizen-taxpayers under State Finance Law §123b. The Amended Complaint also included additional allegations regarding the failure of State funding to support a sound basic education and regarding the inadequacy and insufficiency of specific education resources (inputs) and performance (outputs) in Plaintiffs’ Districts, among other things. These allegations were added to address Defendant’s objection regarding specificity. 11. Assuming arguendo that Defendant’s motion to dismiss has any merit, the amendments set forth in the Amended Complaint render Defendant’s entire motion to dismiss moot as a matter of law and fact. WHEREFORE, it is respectfully requested that defendant’s motion to dismiss be denied in its entirety. Dated: Albany, New York January 26, 2006
__________________________________ ROBERT E. BIGGERSTAFF
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