Motion for Settlement in Gary Apple v. The Department Of Education Of The City Of New York| Trellis.Law

On January 19, 2023 a Exhibit,Appendix was filed involving a dispute between Gary Apple, and The Department Of Education Of The City Of New York, for Torts - Other (Violation of IDEA) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 01/19/2023 02:22 PM INDEX NO. 501944/2023
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EXHIBIT “D”
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1/18/23, 5:21 PM Gmail - Fwd: Non-Implementation Notice: LV v. New York City Department of Education
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/19/2023

Betsy Combier

Fwd: Non-Implementation Notice: LV v. New York City Department of Education
1 message

Jokewriter Tue, Dec 13, 2022 at 8:49 AM
To: Betsy Combier

Hi Betsy,

What is this?

All I can make out is that somebody determined the Department of Education was wrong. And ignored impartial hearing
orders. And that the remedy is that the parents get $3000 voucher for educational services.

I only scan most of it, and I’m assuming this is not our specific case against the department of education.

Is this something we applied to be part of somewhere in the past? It’s dated back to 2008. And what uses a voucher to
me now that my kid is out of school.

Anyhow please tell me that this has nothing to do with our lawsuit.

Gary

Sent from my iPhone

Begin forwarded message:

From: LV Notice
Date: December 13, 2022 at 7:36:09 AM EST
To: jokewriter@gmail.com
Subject: Non-Implementation Notice: LV v. New York City Department of Education

12/13/2022

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FILED: KINGS COUNTY CLERK 01/19/2023 02:22 PM INDEX NO. 501944/2023
1/18/23, 5:21 PM Gmail - Fwd: Non-Implementation Notice: LV v. New York City Department of Education
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/19/2023
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Re: Non-Implementation Notice: LV v. New York City Department of Education

Case number: 178252

Order Date: 5/3/2019

Dear Parent:

As part of the Settlement in LV, et al. v. New York City Dept. of Educ., et al., an Independent Auditor reviews
the timeliness of the New York City Department of Education’s (“DOE”) implementation of impartial hearing
orders.

The Independent Auditor has reviewed the DOE’s implementation of the Order(s) issued in the case(s)
referenced above. Based on its review, the Independent Auditor has determined that the DOE has failed to
timely implement all or part of the Order(s) referenced above concerning your child.

If you choose to take legal action concerning the DOE’s failure to timely implement your order, this Non-
Implementation Notice is the only evidence you will need initially to demonstrate that the DOE failed to
timely implement your Order. The DOE may try to prove that the Independent Auditor’s determination that
your order was not timely implemented was wrong or that the Order has been implemented since the
issuance of the Independent Auditor’s findings. If the DOE does challenge your claim, you may want to
present more evidence of your own. If you choose to bring legal action concerning your Order, you have
certain rights to expedited discovery from the DOE. These rights are set out in Paragraph 20 of the
Stipulation and Agreement of Settlement (available at https://www.advocatesforchildren.org/
sites/default/files/on_page/Stipulation_of_Settlement_122007.pdf?pt=1).

If you would like to discuss the DOE’s failure to timely implement your Order please contact the lawyer or
advocate who represented you at your hearing or Advocates for Children at 646-532-6078. If your Order
was for payment for services or tuition, you are encouraged to first contact your vendor to determine if
payment was made.

https://mail.google.com/mail/u/0/?ik=0b912d1e02&view=pt&search=all&permthid=thread-f%3A1752106930736638645&simpl=msg-f%3A1752106930… 2/2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

LV, RC, AD, NA, ADJ, YG, LO, AP, RLB, RD,
and JYW, individually; and VSG, HR, CW, SS,
MG, MS,, ST, RZ, MC and JP, on behalf of
themselves and all others similarly situated,
No. 03 Civ. 9917 (RJH)
Plaintiffs,

-against-

NEW YORK CITY DEPARTMENT OF
EDUCATION; NEW YORK CITY BOARD OF
EDUCATION; JOEL KLEIN, in his individual and
official capacity as Chancellor of the New York
City School District,

Defendants.

STIPULATION AND AGREEMENT OF SETTLEMENT

This Stipulation and Agreement of Settlement (the "Stipulation"), dated as of

December 11, 2007, is made and entered into pursuant to Rule 23 of the Federal Rules of

Civil Procedure and contains the terms of a settlement, by and among Lead Plaintiffs LV,
1
RC, ADJ, AP, RLB, RD, and JYW, VSG, HR, CW, SS, MG, MS, ST, RZ, MC, and JP,

on behalf of themselves and Members of the Class (as defined below, as are other

capitalized terms herein, except as otherwise noted) and Defendants New York City

Department of Education, New York City Board of Education, and Joel Klein

(collectively, "Defendants," and with Lead Plaintiffs, the "Parties").

The Parties will ask the Court to remove Lead Plaintiffs AD, NA, YG, and LO as Lead
Plaintiffs, but this request will have no impact on any claims they have as Class
Members.
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RECITALS

WHEREAS:

A. On December 12, 2003, Lead Plaintiffs filed the above-captioned class

action (the "Action") alleging violations of the due process clause of the 14th

Amendment of the U.S. Constitution; the Individuals with Disabilities Education Act

("IDEA"), 42 U.S.C. § 1983; Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. §

794; and New York State Education Law§§ 4401 et seq., and the regulations

promulgated thereunder.

B. On February 5, 2004, Lead Plaintiffs filed a motion to certify the Action

as a class action.

C. On April 15, 2004, Lead Plaintiffs filed their Second Amended Complaint

(the "Complaint"). The Complaint alleges that Defendants failed to comply with Orders

from December 12, 2003 through the present.

D. The Complaint further alleges that Defendants' failure to comply with the

Orders is a systemic problem as the Orders are not enforced and implemented in a timely,

effective, and comprehensive manner and alleges that Defendants lacked effective

policies and procedures and did not develop or maintain a system to effectuate the timely,

efficient, and comprehensive enforcement of Orders.

E. On April 30, 2004, Defendants filed a partial motion to dismiss the Second

Amended Complaint.

F. On October 25, 2004, Plaintiffs renewed their motion for class

certification.

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G. By Order dated January 7, 2005, the Court denied Defendants' motion to

dismiss the Second Amended Complaint.

H. By Memorandum and Order dated September 15, 2005, the Court granted

Plaintiffs' motion for class certification.

I. On May 22, 2007, Defendants filed their Answer to the Complaint, in

which they denied any liability, wrongdoing, or violation concerning the allegations in

the Complaint and asserted affirmative defenses to the claims in the Complaint.

J. The Parties have engaged in extensive discovery relating to the claims and

defenses concerning the underlying events and transactions alleged in the Complaint.

Plaintiffs obtained document discovery from Defendants and took depositions of key

individuals at the DOE.

K. Lead Plaintiffs, by their counsel, have conducted discussions and arm's

length negotiations with Defendants and their counsel with respect to a compromise and

settlement of the Action with a view to settling the issues in dispute.

L. Based upon their investigation and pretrial discovery as set forth above,

Lead Plaintiffs have concluded that the terms and conditions of this Stipulation are fair,

reasonable, and adequate and in the best interests of the Class, and have agreed to settle

the claims raised in the Action pursuant to the terms and provisions of this Stipulation,

after considering the substantial benefits that members of the Class will receive from

settlement of the Action; the attendant risks and costs of litigation, including the expense

and length of continued proceedings; the difficulties and delays inherent in such

litigation; and the desirability of permitting the Settlement to be consummated as

provided by the terms of this Stipulation.

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M. This Stipulation is intended by Lead Plaintiffs and the Defendants to fully,

finally, and forever resolve, discharge, and settle the Settled Claims against all Released

Parties, upon and subject to the terms and conditions hereof and subject to the approval of

the Court.

NOW, THEREFORE, without any admission or concession by Lead Plaintiffs of

any lack of merit of the Action whatsoever, and without any admission or concession of

any liability or wrongdoing or lack of merit in their defenses whatsoever by Defendants,

it is hereby STIPULATED AND AGREED, by and among the Parties to this Stipulation,

through their respective attorneys, subject to approval of the Court pursuant to Rule 23 of

the Federal Rules of Civil Procedure, that all Settled Claims as against all Released

Parties and all Settled Defendants' Claims shall be compromised, settled, released, and

dismissed with prejudice, upon and subject to the following terms and conditions:

I. DEFINITIONS

1. As used in this Stipulation and for purposes of the Settlement only, the

following terms shall have the following meanings:

a. "2004 Summer Related Services Compensation Program" means

Defendants' program in the summer of2004 where students who had received

Orders that required the provision of related services were given the opportunity

to access related services.

b. "Action Item" means a specific identifiable action in an Order that,

as determined by the Independent Auditor, requires implementation by the DOE.

In determining the Actions Items in an Order, the Independent Auditor will take

into account, but will not be bound by, DAITS or any successor computer system.

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c. "Authorized Claimant" means a Class Member who submits a

timely and valid Proof of Claim form to the Claims Administrator, as described

more fully in Paragraphs 27-29.

d. "Benchmark Measurement Period" means any given period of time

during which the Independent Auditor shall measure the percentage of Orders and

Action Items that the DOE has Timely Implemented to determine whether the

DOE has complied with a given benchmark, as set forth more specifically in

Paragraph 4.

e. "Claims Administrator" means The Garden City Group, Inc.

f. "Class" means the Compensatory Relief Subclass and the

Injunctive Relief Subclass.

g. "Class Members" means the set of members of the Class,

excluding any members of the Compensatory Relief Subclass who have timely

and properly opted out of the Class.

h. "Commencement Date" means December 12, 2003.

i. "Compensatory Educational Services" means educational services

and all attendant costs and/or assistive technology for the benefit of the student

who was the subject of the Order provided by approved providers or approved by

the Independent Auditor as described in Paragraph 34.e. A preliminary list of

approved providers is attached hereto as Exhibit A.

J. "Compensatory Relief Subclass" means the class of all persons

who, on or after December 13, 2000 and on or before January 31, 2008, (1) have

obtained a favorable Order by an Impartial Hearing Officer against the DOE or a

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stipulation of settlement placed on the record at an impartial hearing with the

DOE and (2) failed to obtain full and timely implementation of such Order or

settlement.

k. "Corrective Action Plan" means a plan devised by Defendants to

address their past failure to implement Orders fully and timely and to increase the

foll and timely implementation of Orders following implementation of the

Corrective Action Plan.

1. "Defendants' Counsel" means the Corporation Counsel of the City

of New York.

m. "DOE" means the New York City Department of Education, the

New York City Board of Education, their past or present affiliates, successors and

predecessors.

n. "Effective Date" means the date set by the Court in accordance

with the approval process for this Stipulation, as described in Paragraph 38.

o. "Final" with respect to an order of the Court means an order as to

which there is no pending appeal, stay, motion for reconsideration or motion to

vacate or similar request for relief, and as to which the period of time for appeal

has expired. For purposes hereof, if no appeal or motion for reconsideration, to

vacate, or for similar relief is filed within forty-five (45) days after entry of the

Order and Final Judgment in the District Court, the Order and Final Judgment

shall be deemed to be Final.

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p. "Impartial Hearing Officers" means individuals who conduct

hearings pursuant to 20 U.S.C. § 1415(f)(l)(A), Section 504 of the Rehabilitation

Act, and any successor statutes.

q. "Independent Auditor" means the individual or entity appointed by

the Court pursuant to the procedures set forth in Paragraph 12.

r. "Injunctive Relief Subclass" means the class of all persons who, on

or subsequent to the Commencement Date, (1) obtain or obtained a favorable

Order by an Impartial Hearing Officer against the DOE or stipulation of

settlement placed on the record at an impartial hearing with the DOE and (2) fail

or failed to obtain full and timely implementation of such Order or settlement.

s. "Non-Implementation Notice" means the notice to be sent to

parents following the Effective Date if the Independent Auditor determines that a

particular Order is Unimplemented. All Non-Implementation Notices shall be in

the form, and contain the information set forth in, the form ofNon-

Implementation Notice attached hereto as Exhibit B.

t. "Order" means a decision, determination, order or statement of

agreement and order (in its entirety, including all Action Items contained therein)

issued by an Impartial Hearing Officer in New York City, under the IDEA,

Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. § 794, New York State

Education Law§§ 4401 et seq., any equivalent federal or state statute or law

enacted subsequent to the Effective Date and which becomes the basis for

adjudication by Impartial Hearing Officers, and all regulations promulgated

thereunder.

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u. "Order and Final Judgment" means the proposed order to be

entered approving the Settlement substantially in the form attached hereto as

Exhibit C.

v. "Payment Order" means an Order, or all Action Items within an

Order, requiring the DOE to make a direct payment to a parent, private service

provider, or private school.

w. "Plaintiffs' Counsel" means Advocates for Children of New York

and Milbank, Tweed, Hadley, & McCloy LLP.

x. "Preliminary Order for Notice and Hearing in Connection with

Settlement Proceedings" means the proposed order preliminarily approving the

Settlement and directing notice thereof to the Class substantially in the form

attached hereto as Exhibit D.

y. "Prospective Payment Order" means a Payment Order requiring

DOE to pay for services (including, where specified, any attendant costs) that had

not been rendered or tuition (including, where specified, any attendant costs) that

had not been paid as of the date of the Payment Order.

z. "Publication Notice" means the Summary Notice of Proposed

Settlement of Class Action and Settlement Hearing substantially in the form

attached as Exhibit E. To the extent there are any discrepancies between this

Publication Notice and the Stipulation, the terms of the Stipulation govern.

aa. "Quarterly Measurement Period" means any given three-month

period of time during which the Independent Auditor shall measure the

percentage of Orders and Action Items that the DOE has Timely Implemented.

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bb. "Reimbursement Payment Order" means a Payment Order

requiring the DOE to pay expenses already paid by a Class Member.

cc. "Released Parties" means any and all of the Defendants, their past

or present affiliates, subsidiaries, parents, successors and predecessors, officers,

directors, agents, employees, attorneys, advisors, insurers, and investment

advisors, auditors, accountants, and any person, firm, trust, corporation, officer,

director or other individual or entity in which any Defendant has a controlling

interest or which is related to or affiliated with any of the Defendants, and the

legal representatives, heirs, successors in interest, or assigns of the Defendants.

dd. "Service Order" means an Order, or all Action Items within an

Order, that requires the DOE to take any action other than make a payment

directly to a parent, private service provider, or private school.

ee. "Settled Claims" means any and all claims, debts, demands, rights,

or causes of action or liabilities whatsoever (including, but not limited to, any

claims for damages, interest, attorneys' fees, expert or consulting fees, and any

other costs, expenses, or liabilities whatsoever), whether based on federal, state,

local, statutory, or common law or any other law, rule, or regulation, whether

fixed or contingent, accrued or un-accrued, liquidated or un-liquidated, at law or

in equity, matured or un-matured, whether class or individual in nature, (i) that

have been asserted in this Action by the Lead Plaintiffs, Class Members, or any of

them against any of the Released Parties, or (ii) that could have been asserted in

any forum by the Lead Plaintiffs, Class Members, or any of them against any of

the Released Parties which arise out of, relate to, or are based upon the

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allegations, transactions, facts, matters or occurrences, representations or

omissions involved, set forth, or referred to in the Complaint. Settled Claims do

not include (i) claims to enforce the Settlement or any provisions thereof, (ii)

claims by members of the Compensatory Relief Subclass who opt-out or, (iii)

individual claims by members of the Injunctive Relief Subclass concerning orders

issued on or after February 1, 2008.

ff. "Settled Defendants' Claims" means any and all claims, rights, or

causes of action or liabilities whatsoever, whether based on federal, state, local,

statutory, or common law or any other law, rule or regulation, that have been or

could have been asserted in the Action or any forum by any Released Parties

against any of the Lead Plaintiffs, Class Members, or their attorneys, which arise

out of or relate in any way to the institution, prosecution, or settlement of the

Action (except for claims to enforce the Settlement or any provisions thereof).

gg. "Settlement" means the settlement contemplated by this

Stipulation.

hh. "Settlement Notice" means the Notice of Proposed Settlement of

Class Action, Motion for Attorneys' Fees, and Settlement Fairness Hearing,

which is to be sent to members of the Class substantially in the form attached

hereto as Exhibit F. To the extent there are any discrepancies between this

Settlement Notice and the Stipulation, the terms of the Stipulation govern.

11. "Timely Implemented" means an Order or Action Item that was

implemented within the length of time specified in the Order or, if no such time is

specified in the Order, within 35 days of issuance (of the Order itself or of the

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Order containing the Action Item), except that particular Orders or Action Items

will also be considered to have been timely implemented for measurement

purposes if:

i. the DOE has provided the parent with a notice that it is considering

appealing the relevant Order or some part thereof in the form attached

hereto as Exhibit G, but the DOE does not actually pursue an appeal, and

(a) the DOE pays any monetary reimbursements required by the Order

within 70 days of the date of issuance of the Order and (b) implements any

other parts of the Order within 60 days of the date of issuance of the

Order, provided that, except for Orders that require only monetary

reimbursement, no more than 40 Orders per calendar year, and no more

than 25 Orders in any particular six-month period, shall be eligible to be

counted as Timely Implemented pursuant to this provision; or

ii. the DOE has demonstrated that it has taken all steps necessary to

implement the Order or Action Item, but could not Timely Implement the

Order or Action Item because implementation was dependent upon further

steps that, in the determination of the Independent Auditor, could not be

completed because of the action or inaction of a third party. Service

providers with whom the Defendants have contracts to provide services

shall not be deemed "third parties" for purposes of this provision.

JJ. "Total Action Items" means the number of Action Items subject to

consideration in each Quarterly or Benchmark Measurement Period, as described

in more detail in Paragraph 15.

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kk. "Total Orders" means the number of Orders subject to

consideration in each Quarterly or Benchmark Measurement Period, as described

in more detail in Paragraph 15.

II. "Uncounted Orders" and "Uncounted Action Items" means

particular Orders or Action Items that the Independent Auditor would otherwise

consider during a particular Quarterly or Benchmark Measurement Period, but

which shall not be considered during such Quarterly or Benchmark Measurement

Period (and shall be excluded from the calculations of "Total Orders," "Orders

Implemented," "Total Action Items," and "Action Items Implemented") if the

Independent Auditor determines that:

i. The Order or Action Item cannot be Timely Implemented because

it requires the DOE to take action that would either violate applicable law

or is factually impossible. In each such instance, the DOE must either

appeal the relevant Order or provide the parent with an appropriate written

alternative to the requirements of the Order or Action Item and implement

that alternative within 35 calendar days of the issuance of the Order.

Absent these steps, the Order or Action Item will be included in "Total

Orders" or "Total Action Items" but will not be counted as Timely

Implemented.

ii. The Order or Action Item cannot be Timely Implemented because

the DOE has made a substantial showing of attempts to reach the parent

and attempts to obtain compliance with the parent's obligations under the

Order. Absent these steps, the Order or Action Item will be included in

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"Total Orders" or "Total Action Items," but not counted as Timely

Implemented.

iii. The Order or Action Item cannot be Timely Implemented because

it required the provision of occupational therapy, physical therapy or

bilingual counseling, or services to be provided by hearing teachers, vision

teachers, bilingual special education teachers, bilingual speech teachers, or

monolingual speech teachers, (all of which the DOE maintains are

shortage areas) and the DOE has made a substantial showing that it

offered the parent an appropriate substitute service within 35 calendar

days of the issuance of the relevant Order or Action Item. Absent these

steps, the Order or Action Item will be included in "Total Orders" or

"Total Action Items," but will not be counted as Timely Implemented.

iv. The Order, in its entirety, or the Action Item was timely appealed

by the DOE.

mm. "Unimplemented" or "Unimplemented Order" means an Order or

Action Item that is found by the Independent Auditor to have not been Timely

Implemented.

II. SCOPE AND EFFECT OF SETTLEMENT

2. The obligations incurred pursuant to this Stipulation shall be in full and

final disposition of the Action and any and all Settled Claims as against all Released

Parties and any and all Settled Defendants' Claims against any of the Lead Plaintiffs,

Class Members, or Plaintiffs' Counsel.

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3. (a) Upon the Effective Date of this Settlement, the Class Members, on

behalf of (i) themselves, and (ii) their past or present legal representatives shall, with

respect to each and every Settled Claim, release and forever discharge, and shall forever

be enjoined from prosecuting, any Settled Claims against any of the Released Parties.

(b) Upon the Effective Date of this Settlement, each of the Defendants, on

behalf of themselves and the Released Parties shall, with respect to each and every

Settled Defendants' Claim, release and forever discharge, and shall forever be enjoined

from prosecuting, any Settled Defendants' Claim against any of the Lead Plaintiffs, Class

Members, or Plaintiffs' Counsel.

III. INJUNCTIVE RELIEF

4. Upon the Effective Date and subject to the requirements of Paragraph 10,

the DOE must comply with the following benchmarks. For purposes of these

benchmarks, compliance will be measured by the Independent Auditor for Payment

Orders and Service Orders by both a percentage of Orders and a percentage of Action

Items that have been Timely Implemented. Whether a particular benchmark has been

met will be determined solely by the Independent Auditor, as provided below.

a. First Benchmark: For the period ending six months after the

Effective Date (the "First Benchmark Measurement Period"), the DOE shall

Timely Implement 75% of Action Items or Orders. If the DOE Timely

Implements 75% or more of Action Items within the First Benchmark

Measurement Period, then it must also Timely Implement 70% or more of Orders

within the First Benchmark Measurement Period in order to be deemed in

compliance with the First Benchmark. Alternatively, ifthe DOE Timely

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Implements 75% or more of Orders within the First Benchmark Measurement

Period, then it must also Timely Implement 70% or more of Action Items within

the First Benchmark Measurement Period in order to be deemed in compliance

with the First Benchmark.

b. Second Benchmark: For the six month period that immediately

follows the monitoring period for which the DOE has been determined to have

achieved the First Benchmark (the "Second Benchmark Measurement Period"),

the DOE shall Timely Implement 85% of Action Items or Orders. If the DOE

Timely Implements 85% or more of Action Items within the Second Benchmark

Measurement Period, then it must also Timely Implement 80% or more of Orders

within the Second Benchmark Measurement Period in order to be deemed in

compliance with the Second Benchmark. Alternatively, ifthe DOE Timely

Implements 85% or more of Orders within the Second Benchmark Measurement

Period, then it must also Timely Implement 80% or more of Action Items within

the Second Benchmark Measurement Period in order to be deemed in compliance

with the Second Benchmark.

c. Third Benchmark: For two consecutive years ("Year 1" and "Year

2.") following the monitoring period for which DOE has been determined to have

achieved the Second Benchmark (the "Third Benchmark Measurement Period"),

the DOE shall Timely Implement 91.5% of Action Items or Orders. If the DOE

Timely Implements 91.5% or more of Action Items within the Third Benchmark

Measurement Period, then it must also Timely Implement 88% or more of Orders

within the Third Benchmark Measurement Period in order to be deemed in

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compliance with the Third Benchmark. Alternatively, ifthe DOE Timely

Implements 91.5% or more of Orders within the Third Benchmark Measurement

Period, then it must also Timely Implement 88% or more of Action Items within

the Third Benchmark Measurement Period in order to be deemed in compliance

with the Third Benchmark.

5. Except as specified in Paragraph 7, the DOE will be deemed to have

complied with a benchmark for a particular Benchmark Measurement Period if it

complies with that benchmark on an aggregate basis for the full Benchmark Measurement

Period (even if it was not in compliance for all separate Quarterly Measurement Periods

within the Benchmark Measurement Period).

6. If a later Benchmark is met earlier than otherwise required by this

Stipulation, then the provisions of this section shall operate as follows:

a. If, at the end of the First Benchmark Measurement Period, the

DOE has met the Second Benchmark, then the Third Benchmark Measurement

Period will commence instead of the Second Benchmark Measure Period.

b. If, at the end of the First Benchmark Period, the DOE has met the

Third Benchmark, then the Third Benchmark Period will be deemed to have

commenced at the beginning of the First Benchmark Measurement Period.

c. If, at the end of the Second Benchmark Measurement Period, the

DOE has met the Third Benchmark Measurement Period, then the Third

Benchmark Measurement Period will be deemed to have commenced at the

beginning of the Second Benchmark Measurement Period.

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FILED: KINGS COUNTY CLERK 01/19/2023 02:22 PM INDEX NO. 501944/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/19/2023

7. If, after the Independent Auditor certifies that the Third Benchmark has

been met for Year 1, the Independent Auditor concludes that the DOE did not meet the

Third Benchmark for Year 2, but the DOE met or exceeded the Second Benchmark for

Year 2, the time periods for compliance with the Third Benchmark will be extended for

one year (the "Extension Period"). At the end of the Extension Period, if the DOE meets

the Third Benchmark in the aggregate (i.e., the DOE has implemented at least

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Exhibit,Appendix: Gary Apple v. The Department Of Education Of The City Of New York

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