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A Manhattan appeals court has found that Letitia James, New York City's public advocate, does not have the capacity or standing to pursue an Article 78 proceeding aimed at forcing the city to provide air-conditioned school busing to disabled children.

An Appellate Division, First Department, panel said that James “does not challenge any administrative act or omission interfering with matters within her purview,” in an opinion dismissing the Article 78 petition against the city Department of Education and its chancellor Carmen Farina.

The panel's decision reverses the 2016 opinion of Manhattan Supreme Court Justice Alice Schlesinger. Schlesinger, while finding that James did have the capacity to lodge the action on behalf of disabled children citywide, had ruled that “the public advocate's mandate would include an obligation to explore a serious health problem affecting disabled children of the city and attempt, with the help of the court, to remedy that problem.”

Schlesinger had also pointed out that knocking aside James “would have significant consequences [for the action], since it is questionable whether the children'[s] mothers have the legal right … to sue on behalf of anyone other than themselves.”

But in a terse opinion issued Tuesday, a unanimous First Department panel found that James—and by extension Schlesinger with her ruling—had overstepped their bounds.

“The public advocate lacks capacity to bring this suit, since she undisputedly lacks express statutory authority to do so, and such capacity is not implied by her powers and duties pursuant to NY City Charter Section 24,” wrote Justices David Friedman, Sallie Manzanet-Daniels, Barbara Kapnick, Cynthia Kern and Anil Singh.

“The public advocate also lacks standing to bring this suit,” they said. “The public advocate, who does not claim third-party standing, fails to establish that she will suffer harm in the absence of the relief sought, since she does not challenge any administrative act or omission interfering with matters within her purview.”

The panel also found that all of the petitioners, including mothers claiming their autistic children have been forced to ride in dangerously overheated school buses, are not entitled to a mandamus remedy because the relief sought “involves acts the exercise of which is discretionary,” such as whether the education department chooses to seek penalties against contracted-for bus companies.

“There's nothing more important than the safety of our children, and we're disappointed that the administration chose to hamper our efforts to protect kids with disabilities in this case,” said Anna Brower, a spokesperson for James, in response to the panel's opinion and the education department's legal battle against James.

“We are particularly disappointed that Mayor de Blasio, who used litigation during his own tenure as Public Advocate, would try to limit the powers of this watchdog office,” Brower also said, adding, “We are considering all of our options, including appeal and legislative remedies.”

Two mothers and James lodged the Article 78 proceeding in August 2015 against the city, the education department and Farina. They requested that the department immediately provide air-conditioned, safe bus rides to and from city schools for children, according to Schlesinger's 2016 opinion.

More specifically, wrote Schlesinger, the petitioners asked for a declaration that the city respondents had violated New York City Administrative Codes Section 19-605(a) and New York City Human Rights Law, Administrative Code Section 8-101 et seq.; that the court direct respondents to immediately enforce Administrative Code Section 19.605(b), which mandates that air conditioning be provided to schoolchildren with disabilities; that the court direct respondents to establish adequate systems to monitor bus companies' performance under their contracts and thereby ensure that ambient bus temperatures are above 70 degrees; that the court direct respondents to penalize the bus companies; and the petitioners asked for actual damages, punitive damages and attorneys fees and costs.

Schlesinger, while noting that no bus companies were named in the action, found in James' favor, despite recognizing that “capacity to sue, to enter a courtroom with the hope of obtaining specific relief, is not a right that every individual or entity has.”

“Respondents point out that the public advocate also was never given any explicit rights to sue,” Schlesinger wrote. “But as then noted by Ms. James, no part of the charter withheld such a power.”

Then, while citing the First Department's rationale in Green v. Safir, 255 AD2d 107 (1998) for support, Schlesinger wrote that the basis for James' capacity to sue “lies in who the public advocate is and what is her role and responsibility.”

“She is a publicly elected official. It is the charter of the city of New York that establishes her powers to review complaints relating to services and programs affecting New Yorkers,” Schlesinger continued. “Her mandate is to investigate and try to resolve such complaints ….The office was created as a public 'watchdog' focusing on problems the city or one of its agencies is not successfully coping with … .The petition documents advocate James' involvement in the persistent problem of the lack of adequately functioning air conditioning in buses servicing disabled public school students. … The public advocate told DOE [in 2014] of the problem and of the many complaints her office had received … She also asked for a number of relevant documents which she asserts she never received. She offered to work with DOE toward resolving the problem. That offer was also not embraced. And many of the buses transporting these children were still not functioning through the summer of 2015. … The public advocate is seeking aid from the court to fix this serious problem.”

The First Department's opinion did not address Schlesinger's points specifically, but rather made its points succinctly while issuing a ruling that dismissed the action against the education department and Farina. The City of New York, the other named respondent, was dismissed from the action by Schlesinger in 2016.

Aaron Bloom, a lawyer for the New York City Law Department, represented the education department and Farina.

Nick Paolucci, a law department spokesman, said in an email Wednesday, “The court ruled that the public advocate doesn't have the authority to sue the DOE over school busing. Nevertheless, the Department of Education is working hard to address the air conditioning issue for students.”