UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
DEREK S. and ASHLEY T.S., D.O., individually and as Guardians Ad Litem of their minor child, J.S.,
Plaintiffs, 1:24-cv-767 (AMN/PJE)
v.
THE BALLSTON SPA CENTRAL SCHOOL DISTRICT and BALLSTON SPA BOARD OF EDUCATION,
Defendants.
APPEARANCES: OF COUNSEL: COOPER ERVING & SAVAGE LLP CARLO ALEXANDRE C. DE 20 Corporate Woods Blvd. – Suite 501 OLIVEIRA, ESQ. Albany, NY 12211 Attorneys for Plaintiffs
GIRVIN & FERLAZZO, P.C. SCOTT P. QUESNEL, ESQ. 20 Corporate Woods Blvd. MADELINE K. PING, ESQ. Albany, NY 12211 Attorneys for Defendants
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Presently before the Court is Plaintiffs Derek S. and Ashley T.S.’s motion for
reconsideration of this Court’s March 6, 2025 Memorandum Decision and Order, Dkt. No. 26,
denying their motion for a preliminary injunction. Dkt. No. 27 (the “Motion”). Defendants
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Ballston Spa Central School District and the Ballston Spa Board of Education filed their opposition
on March 31, 2025, Dkt. No. 31, and Plaintiffs filed a reply on April 2, 2025, Dkt. No. 34.
For the reasons set forth below, Plaintiffs’ Motion is denied.
II. BACKGROUND
Plaintiffs seek preliminary injunctive relief based on Defendants’ alleged failure to provide
J.S., a student with autism spectrum disorder, access to a structured Applied Behavior Therapy
(“ABA therapy”) program in school since 2021. See generally Dkt. No. 18.1 In particular,
Plaintiffs seek an order requiring that Defendants “change the educational program offered to J.S.
to include a structured ABA program that is closely supervised by a Board-Certified Behavior
Analyst [], including a 1:1 aide who is trained and supervised in ABA therapy to help J.S. make
progress while this action is pending.” Id. at 2. On March 6, 2025, the Court denied Plaintiffs’
request for a preliminary injunction, finding that while the claims asserted in Plaintiffs’ pleadings
under Title II of the Americans with Disabilities Amendments Act of 2008 (“Title II”) and Section
504 of the Rehabilitation Act of 1973 (“Section 504”) are properly before this Court, their request
for preliminary injunctive relief is barred by the administrative exhaustion requirement of the
Individuals with Disabilities Act (“IDEA”). Dkt. No. 26. Plaintiffs now seek reconsideration of
that denial, arguing that the Court erred in applying the exhaustion requirement and failing to
consider exceptions to exhaustion. See Dkt. Nos. 27, 34.
III. STANDARD OF REVIEW
As a general matter, “reconsideration is warranted where the moving party can show the
court ‘overlooked’ facts or controlling law that ‘might reasonably be expected to alter the
1 The parties’ familiarity with the background of this matter is assumed, and only those facts relevant to resolving the Motion are discussed here. 2
conclusion reached by the court.’” Zhang v. Ichiban Grp., LLC, No. 17-cv-00148, 2022 WL
813956, at *1 (N.D.N.Y. Mar. 17, 2022) (quoting Hum. Elecs., Inc. v. Emerson Radio Corp., 375
F. Supp. 2d 102, 114 (N.D.N.Y. 2004)); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995). Furthermore, “[i]n this district, there are only three circumstances under which a
court will grant a motion for reconsideration: ‘(1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) a need to correct a clear error of law or prevent manifest
injustice.’” Wright v. Martin, Harding & Mazzotti, LLP, No. 1:22-CV-515 (MAD/ML), 2024 WL
2399906, at *2 (N.D.N.Y. May 23, 2024) (citing Lewis v. Martinez, No. 9:15-cv-55, 2019 WL
2105562, *1 (N.D.N.Y. May 14, 2019)).2
IV. DISCUSSION
Given the lack of an intervening change in controlling law or new evidence identified in
Plaintiff’s Motion, the Court construes Plaintiffs’ request for reconsideration to assert that there is
“a need to correct a clear error of law or prevent manifest injustice.” Wright, 2024 WL 2399906,
at *2 (quoting Lewis, 2019 WL 2105562, at *1); see also Dkt. No. 27-2 at 4. As discussed below,
2 The parties proceed pursuant to Federal Rule of Civil Procedure (“F.R.C.P.”) 60(b). However, given that the Court had not yet entered final judgment at the time Plaintiffs filed the Motion, “the Court believes that [the] request for reconsideration is [ ] properly analyzed under [F.R.C.P.] 54(b), which permits federal district courts to reconsider an interlocutory order ‘at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.’” Bradshaw v. Fletcher, No. 19-cv-0428, 2022 WL 22889197, at *3 (N.D.N.Y. Feb. 7, 2022) (first quoting F.R.C.P. 54(b); and then citing Harris v. Millington, 613 F. App’x 56, 58 (2d Cir. 2015)). Indeed, the Second Circuit has recently noted that a motion for reconsideration of a preliminary injunction order made under Rule 60(b) is “procedurally defective” because such an order is “not a final order.” New Falls Corp. v. Soni Holdings LLC, No. 21-865-cv, 2022 WL 2720517, at *1 n.2 (2d Cir. 2021); see also Inkel v. Connecticut, No. 3:14–CV–01303 (MPS), 2015 WL 4067038, at *6 (D. Conn. 2015) (reconsidering an order denying a motion for preliminary injunction pursuant to Rule 54(b)). Regardless, the Court would reach the same result and deny the motion for reconsideration under both Rule 54(b) and 60(b). 3
however, Plaintiffs have not identified a clear error or a manifest injustice, and therefore,
reconsideration is denied.
A. New Arguments
Plaintiffs argue that the Court erred in concluding that the IDEA exhaustion requirement
barred their claim for injunctive relief because Plaintiffs’ claims fall under certain exceptions to
exhaustion. See Dkt. No. 27-2 at 8. Fatally, Plaintiffs did not raise any exception to the exhaustion
requirement in its initial briefing. See Dkt. No. 23-4 at 7-8.
Generally, a motion for reconsideration is not intended to afford a “losing party an
opportunity to . . . introduce arguments . . . that could have been presented, but were not, in
opposing the original motion.” NYPPEX, LLC, et al., v. Fin. Indus. Regul. Auth., Inc., No. 22-CV-
01528 (PMH), 2022 WL 624951, at *1 (S.D.N.Y. Mar. 2, 2022) (quoting Caribbean Trading &
Fid. Corp. v. Nigerian Nat’l Petrol. Corp., 948 F.2d 111, 115 (2d Cir. 1991)). Indeed, where a
motion for reconsideration “raise[s] new arguments that could have been raised” with the original
motion, a district court acts within its discretion in denying reconsideration. Williams v. Romarm,
751 Fed. Appx. 20, 24 (2d. Cir. 2018) (summary order); see also Salim v. Patnode, 9:18-cv-57
(MAD/ATB), 2019 WL 4195175, at *2 (N.D.N.Y. Sept. 4, 2019) (“The purpose of reconsideration
is not for ‘advanc[ing] new facts, issues or arguments not previously presented to the Court.’”
(citation omitted))
Here, Plaintiffs had the opportunity to raise the exceptions to the exhaustion requirement
in the initial briefing. Contra Dkt. No. 34 at 7. In response to Plaintiffs’ request for a preliminary
injunction, Defendants argued that Plaintiffs had not satisfied the exhaustion requirement set out
in the IDEA. See Dkt. No. 22 at 11-20. Plaintiffs responded by claiming that they were “not
required to exhaust IDEA administrative remedies to assert claims for disability discrimination
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under the ADA and Section 504.” Dkt. No. 23-4 at 7. Plaintiffs did not include any mention of
exceptions to the exhaustion requirement, but instead, argued that exhaustion was generally
inapplicable. Id. This Court disagreed. See generally, Dkt. No. 26 at 13. Subsequently, in their
motion for reconsideration, Plaintiffs pivoted, arguing that they were afforded exemptions from
the exhaustion requirement. Dkt. No. 27-2. But Plaintiffs had the opportunity to raise exceptions
to the exhaustion bar in response to Defendant’s opposition to their motion for a preliminary
injunction, and therefore, the Court denies the motion for reconsideration. See Williams, 751 Fed.
Appx. at 24.
Plaintiffs’ attempt to avoid this conclusion are meritless. First, Plaintiffs argue that they
“could not have anticipated” that the Court would find that the IDEA exhaustion bar applies, and
therefore, they should be excused for not arguing that the exceptions apply. Dkt. No. 34 at 7. But
the record demonstrates that this argument is incorrect. Defendants spent a large portion of their
opposition to Plaintiff’s motion for a preliminary injunction arguing that the exhaustion
requirement bars such relief. See Dkt. No. 22 at 11-20. At that point, Plaintiffs were on notice
that the exhaustion requirement was at issue, and therefore, the Court’s decision could not have
come as a surprise.
Second, Plaintiffs seem to argue that their citation of cases which, in portions not relied
upon by Plaintiffs, discussed the exceptions to the exhaustion bar adequately raised the issue with
the Court for purposes of pressing it on a motion for reconsideration. See Dkt. No. 34 at 7. But a
mere citation to authority for a separate purpose, without more, is not enough to preserve all other
legal arguments which the parties could draw from that authority. See, e.g., Schoolcraft v. City of
New York, 248 F. Supp. 3d 506, 509 (S.D.N.Y. 2017) (recognizing a new argument was rooted in
previously cited authority but denying reconsideration because “Plaintiff did not urge” the new
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argument in previous briefing). Regardless, the Court did consider the cited authorities, including
the discussion of potential exceptions to the exhaustion requirement. In its review of applicable
precedent, the Court determined that, in this Circuit, exhaustion applies “unless the plaintiff can
allege that an exception should apply.” Levine v. Greece Cent. Sch. Dist., 353 Fed. Appx. 461,
463 (2d Cir. 2009) (summary order). In other words, in response to an invocation of the exhaustion
requirement, “Plaintiffs bear the burden of establishing that the [applicable] exception[s] appl[y].”
Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 682 (S.D.N.Y. 2009). Thus, in light
of Plaintiffs’ failure to press the issue, the Court did not have grounds to consider the applicability
of the exceptions. See A.S. v. Bd. Of Educ. Shenendehowa Cent. Sch. Dist., 1:17-CV-0501
(LEK/CFH), 2019 WL 719833, at *13 (N.D.N.Y. Feb. 20, 2019) (finding that the Court must apply
the exhaustion requirement and preclude claims where “Plaintiffs have not argued that any
exceptions to the exhaustion requirement apply”).
Third, Plaintiffs state that the issue, “even if characterized as a new argument, should be
considered because it is a purely legal argument that requires no additional fact finding.” Dkt. No.
34 at 7-8. Plaintiffs present two inapplicable cases in support of this argument, both of which
exclusively discuss the ability to raise new arguments on appeal, rather than the ability to raise
new arguments on a motion for reconsideration. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114
(2d Cir. 2005) (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well-
established general rule that an appellate court will not consider an issue raised for the first time
on appeal.” (emphasis added))); see also Sniado v. Bank Austria AG, 378 F.3d 210, 213 (2d Cir.
2004) (quoting Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir. 2000)) (“Normally, we will not
consider a claim raised for the first time on appeal, . . . , unless otherwise directed to do so.”
(emphasis added)). Seeing as a “motion for reconsideration is not a substitute for an appeal,” these
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cases are inapplicable to the Plaintiffs’ motion, and this argument is rejected. Shaughnessy v.
Garrett, No. 5:06-CV-103 FJS GHL, 2011 WL 1213167, at *1 (N.D.N.Y. Mar. 31, 2011).
Again, reconsideration is not a place for “relitigating old issues, presenting the case under
new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.’”
Wilson v. Hilton, No. 5:20-CV-1489, 2024 WL 510286, at *3 (N.D.N.Y. Feb. 8, 2024) (citing
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). Thus, to the extent that Plaintiffs’
motion relies upon the application of exceptions to the exhaustion requirement, an argument which
was not previously pressed, the motion is denied. However, even if Plaintiffs had properly raised
the argument, it is meritless.
B. Exceptions to IDEA Exhaustion
As explained in this Court’s initial order, “[t]he Individuals with Disabilities Education Act
(IDEA), . . . seeks to ensure children with disabilities receive a free and appropriate public
education.” Luna Perez v. Sturgis Pub. Sch., 598 U.S. 142, 144 (2023). Usually, claims which
fall under the purview of the IDEA, even if formally brought under other statutes, may only be
brought in federal court if a plaintiff has exhausted the administrative remedies available. But
exhaustion is not required if the form of relief sought in federal court is not available under the
IDEA. See Luna Perez, 598 U.S. at 150; See also Simmons v. Murphy, No. 23-288-CV, 2024 WL
2837625, at *3 (2d Cir. June 5, 2024).
However, “[e]xhaustion of IDEA claims is not required if (1) it would be futile to resort to
the IDEA’s due process procedures; (2) an agency has adopted a policy or pursued a practice of
general applicability that is contrary to the law; or (3) it is improbable that adequate relief can be
obtained by pursuing administrative remedies.” Walsh v. King, No. 1:14–CV–1078 (LEK/RFT),
2014 WL 4630691, at *3 (N.D.N.Y. Sep. 12, 2014) (internal quotation marks omitted). Within
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this framework, the Second Circuit has excused the failure to exhaust administrative remedies
where, “(i) the state agency was itself acting contrary to law; (ii) the case involves systemic
violations that could not be remedied by local or state administrative agencies; (iii) an emergency
situation exists (e.g., the failure to take immediate action will adversely affect a child’s mental or
physical health); or (iv) the complaint alleges that the defendant school district had failed to
implement the clearly-stated requirements of the IEPs.” Frank v. Sachem Sch. Dist., 84 F. Supp.
3d 172, 191 (E.D.N.Y. 2015) (citations and internal quotation marks omitted).
Plaintiffs’ Motion argues that this case implicates the exceptions for “(i) emergency
situations . . . , (ii) clear violation[s] of the law . . . , [and] (iii) when [] exhaustion would be futile
either as a legal or practical matter . . . .” Dkt. No. 27-2 at 8. Plaintiffs are wrong in relation to all
three exceptions, and thus, even if the exceptions were properly raised prior to the instant motion
for reconsideration, the Court would nonetheless apply the exhaustion requirement.
i. Emergency Situations
First, Plaintiffs argue that they should be excused from the exhaustion requirement because
this case involves an “emergency situation.” Dkt. No. 27-2 at 9. In the IDEA context, an
“emergency situation” is a situation wherein “‘failure to take immediate action will adversely
affect a child’s mental or physical health.’” Coleman v. Newburgh Enlarged City Sch. Dist., 503
F.3d 198, 206 (2d Cir. 2007) (citing H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985)). Such an
exception is to be “sparingly invoked,” as to avoid “undermin[ing] the IDEA’s statutory mandate
for exhaustion.” Coleman, 503 F.3d at 206.
Plaintiffs argue that this case presents an emergency situation because “J.S. will be
irreparably harmed in the absence of immediate court intervention.” Dkt. No. 27-2 at 5. Plaintiffs
allege that “every day that J.S. goes without receiving the recommended treatment for his
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disability, the less likely it is that he will be able to learn important skills necessary for his
development.” Id. at 9. Indeed, as Plaintiffs point out, several courts have recognized that young
students with autism spectrum disorder face a narrow “window of opportunity” for learning, which
if ignored, can result in critical issues in the child’s long-term development. Dkt. No. 18-8 at 22;
see also Dkt. No. 27-2 at 14. Plaintiffs also argue that there is “no evidence in the record to support
a finding that denying ABA services to an autistic child is not an emergency situation because of
the proven harm that will result to the autistic child who does not receive such services at an early
age.” Id. at 11.
The Court acknowledges Plaintiffs’ strong desire for immediate relief. Nevertheless, the
emergency situation exception does not apply because, even accepting Plaintiffs’ assertion of
irreparable harm as true, the emergency is, at least in part, “a problem of their own making.”
Crocker v. Tenn. Secondary Sch. Athletic Ass’n, 873 F.2d 933, 937 (6th Cir. 1989) (finding “no
exception will be made where plaintiffs assert an emergency that is in fact ‘a problem of their own
making.’” (citation omitted)); see also Pelosi o/b/o A.P. v. Ctr. Moriches Union Free Sch. Dist.,
CV 07-91 (FB) (AKT), 2007 WL 9710991, at *17 (E.D.N.Y. June 13, 2007) (finding parents
“cannot complain of ‘emergency’ circumstances as the basis for preliminary injunctive relief when
the record demonstrates that the circumstances are in large part of their own making”). Here,
Plaintiffs filed the instant motion for a preliminary injunction following a December 10, 2024
Committee on Special Education (“CSE”) meeting wherein Defendants yet again denied the
provision of ABA services to J.S. in his Individualized Education Program (“IEP”). Dkt. No. 18-
8 at 12-13. However, Plaintiffs allege that Defendants have denied J.S. ABA services since he
started kindergarten in 2021. Id. at 8. Thus, while the December 2024 meeting represents the
latest alleged deprivation, Plaintiffs could have challenged the exclusion of ABA services from
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J.S.’s IEP for approximately three years prior to seeking the instant preliminary injunction. This
delay undermines Plaintiffs’ reliance on the emergency exception.
Even had Plaintiffs acted more promptly, the Court finds they have failed to meet their
evidentiary burden to establish an emergency situation. Piazza, 777 F. Supp. 2d at 682 (noting it
is Plaintiffs’ burden to establish the applicability of exceptions). In order to establish an emergency
situation, other Circuits have required plaintiffs to “provide affidavits from competent
professionals along with other hard evidence that the child faces irreversible damage if the relief
is not granted.” Komninos by Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778-79
(3d Cir. 1994); Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000) (applying the same standard). For
its part, the Second Circuit has recognized that plaintiffs must “provide a sufficient preliminary
showing” of irreversible harm to invoke the emergency situation exception. Coleman, 503 F.3d
at 206 (quoting Komninos). Here, despite attaching as exhibits various scientific, medical, and
administrative documents and an independent educational neuropsychological evaluation
supporting their requests for ABA services, Plaintiffs have failed to provide any sworn affidavits
or other hard evidence attesting to irreversible harm to J.S. in the absence of ABA therapy. See,
e.g., Dkt. No. 18-3 at 97.
ii. Clear Violation of the Law
Second, Plaintiffs argue that “IDEA exhaustion is not required when the school district
acted in violation of the law[.]” Dkt. No. 27-2 at 4 (alterations in original). However, Plaintiffs
interpret the applicable exception far too broadly. To succeed under this exception, courts assess
whether “an agency has adopted a policy or pursued a practice of general applicability that is
contrary to the law.” A.S., 2019 WL 719833, at *12 (citing Murphy v. Arlington Cent. Sch. Dist.
Bd. of Educ., 297 F.3d 195, 199 (2d Cir. 2002)). The “general applicability” language requires
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that individuals seeking to avoid exhaustion make a claim that is not specific to one child but is
instead systemic in nature. See Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp.
2d 490, 508 (S.D.N.Y. 2011) (noting that “specifically alleging that Defendants’ actions
discriminated against and interfered specifically with [a student]’s education alone” was not
sufficient to excuse exhaustion under the contrary to law exception); see also Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (“[t]here is no allegation of a system-wide
violation of the IDEA’s mandates or of a district-wide policy of discrimination against hearing-
impaired students”), abrogated on other grounds by Doe v. Franklin Square Union Free Sch. Dist.,
100 F.4th 86, 102 (2d Cir. 2024).
Here, Plaintiffs state that “[t]he violation of law here is Defendants’ deliberate indifference
to J.S.’s rights by ignoring medical (not educational) recommendations for services.” Dkt. No.
27-2 at 4 (emphasis on “to J.S.’s rights” added). As such, Plaintiffs have not made any allegations
against the Defendants on a broader, system-wide scale, but are instead pleading discrimination
against J.S. exclusively. As discussed, when faced with similar arguments, courts in this Circuit
have recognized that the “acting in violation of the law” exception to exhaustion “clearly refers to
a much narrower category of violations than [P]laintiffs apparently believe, namely to legal
violations that render the administrative review process ineffective.” M.A. v. New York Dep’t of
Educ., 1 F. Supp. 3d 125, 147 (S.D.N.Y. 2014). Were the Court to apply the exception to all cases
in which defendants are alleged to have acted unlawfully against the individual plaintiffs in a given
case, such an approach “would, in effect, gut the exhaustion requirement entirely, and would allow
every plaintiff to proceed directly to state or federal court on any IDEA-related claim, whether or
not that claim had been exhausted.” Id. Therefore, the exception for unlawful conduct does not
apply.
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iii. Futility
Finally, Plaintiffs argue that the exhaustion bar should not apply because “exhaustion
would be futile or should otherwise be excused.” Dkt. No. 27-2 at 8 (citing Simmons v. Murphy,
No. 23-288-CV, 2024 WL 2837625, at *5 (2d Cir. June 5, 2024)). The Second Circuit has defined
futility as a situation where “the wrongs alleged could not or would not have been corrected by
resort to the administrative hearing process.” Coleman, 503 F.3d at 204-05. Typically, this
exception is applied where “(1) the very procedures for assessing and placing students in
educational programs were in issue, or (2) the nature and volume of the complaints made the
administrative process an insufficient avenue of redress.” Dallas v. Roosevelt Union Free Sch.
Dist., 644 F. Supp. 2d 287, 294 (E.D.N.Y. 2009) (citing Cave, 514 F.3d at 249); see also S.G. v.
Success Acad. Charter Schs., 18 Civ. 2484 (KPF), 2019 WL 1284280, at *10 (S.D.N.Y. Mar. 20,
2019) (quoting J.S. ex rel. N.S. v. Attica Cent. Schools, 386 F.3d 107, 114 (2d Cir. 2004)).
In support of their argument, Plaintiffs assert that exhaustion would be futile because
“seeking injunctive relief after an administrative hearing does not realistically protects [sic] J.S.’s
rights[,]” due to the urgency of the requested services. Dkt. No. 27-2 at 9. As discussed above,
Plaintiffs do not allege that the “very procedures” involved in J.S.’s IEP or any other system for
assessing educational services are at issue. To the extent that Plaintiffs argue the urgent and
allegedly irreparable “nature” of J.S.’s need for ABA services “ma[k]e[s] the administrative
process an insufficient avenue of redress,” the Court has already addressed this claim under the
“emergency” exception and found that the basis for the argument does not support waiver.
Therefore, even if the Court could consider the exceptions to exhaustion laid out in
Plaintiffs’ motion for reconsideration, none of the exceptions would apply.
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C. Other Alleged Clear Errors of Law
Beyond the exceptions to the exhaustion requirement, Plaintiffs seemingly argue that the
Court has made other clear errors of law.
First, Plaintiffs argue that because of its focus on IDEA, “the Court failed to appreciate the
merits of Plaintiffs’ claims under Title II of the Americans with Disabilities Act . . . and Section
504 of the Rehabilitation Act of 1973.” Dkt. No. 27-2 at 4. But the purported strength of Plaintiffs’
underlying claims has nothing to do with whether the IDEA exhaustion requirement bars their
request for injunctive relief. Indeed, the Court explicitly noted that in denying the preliminary
injunction, it did not bar Plaintiffs’ underlying claims for damages under Title II and Section 504.
See Dkt. No. 26 at 16. Plaintiffs’ argument amounts to no more than frustration with the
application of the IDEA exhaustion requirement.
Second, Plaintiffs argue that they “seek to have the Defendants follow experts’ medical
recommendations for services necessary to accommodate his disability, not education services.”
Dkt. No. 27-2 at 14. Put differently, Plaintiffs argue that the Court was mistaken in characterizing
the provision of ABA services as education services, not medical care, which would fall outside
of the IDEA’s scope. See id. at 4 (characterizing ABA therapy services as “medical (not
educational)” (emphasis in original)). However, as articulated in their motion for a preliminary
injunction, Plaintiffs’ goals are to have the district “follow the medical recommendations that a
structured ABA program be incorporated as part of J.S.’s educational program.” Dkt. No. 18-3
at ¶ 64 (emphasis added); see also id. at ¶ 50 (requesting ABA therapy to “ensur[e] our son the
student can fully participate in class while managing his autism effectively”). Moreover, when
faced with similar complaints related to the provision of ABA services in schools, several courts
have found that such claims are subject to the exhaustion requirement of the IDEA. See L.A. v.
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New York City Dep’t of Educ., 1:20-cv-05616-PAC, 2021 WL 1254342, at *5 (S.D.N.Y. Apr. 5,
2021) (finding “insofar as Plaintiffs seek additional services—e.g., ABA therapy” such a request
is subject to exhaustion); H.G. v. Orcutt Union Sch. Dist., No. CV 21-4267-DMG (JCX), 2022
WL 18277271, at *5 (C.D. Cal. Nov. 30, 2022) (noting that “Plaintiff further tries to avoid the
IDEA’s exhaustion requirement by artfully pleading that his ABA therapy constitutes medical
services exempt from the IDEA’s coverage” and finding that ABA therapy “falls under the ‘related
services’ requirement of the IDEA, and thus requires exhaustion” (citation omitted)); S.S.V., by &
through his father Anthony Vos v. Gresham-Barlow Sch. Dist. NO. 10J, No. 3:19-CV-341-JR,
2019 WL 13133863, at *3-4 (D. Or. July 17, 2019) (finding ABA services are not exempt from
the IDEA exhaustion requirements because they are not provided by a licensed physician); see
also M.G. v. New York City Dep’t of Educ., 19 Civ. 3092 (PAE), 2020 WL 4905390, at *1
(S.D.N.Y. Aug. 7, 2020) (illustrating a failure to provide ABA therapy is actionable under the
IDEA where claimants have exhausted their administrative remedies). Therefore, Plaintiffs’
assertion that ABA services fall outside the ambit of the IDEA and its exhaustion requirement fails
to identify a clear error of law.
Third, Plaintiffs argue that the Court overlooked a slew of cases, including B.D. v.
Debuono, 130 F. Supp. 2d 401, 439 (S.D.N.Y. 2000), Robert F. v. N. Syracuse Cent. Sch. Dist.,
5:18-CV-594 (LEK/ATB), 2019 WL 13120328 (N.D.N.Y. July 24, 2019), Robert F. v. N. Syracuse
Cent. Sch. Dist., 5:18-CV-594 (LEK/ATB), 2021 WL 3569108 (N.D.N.Y. Aug. 12, 2021), and
Gabel ex rel. L. G. v Bd. of Educ., 368 F. Supp. 2d 313, 336 (S.D.N.Y. 2005). See Dkt. No. 27-2
at 13. Plaintiffs generally assert that these cases support the notion that Defendants acted
unlawfully and with reckless indifference. Id. However, these cases deal with whether plaintiffs
have stated and/or proven discrimination claims under Section 504, and thus, are irrelevant to the
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application of the exhaustion requirement, the sole basis for this Court’s denial of the preliminary
injunction. Indeed, in relation to Plaintiffs’ claims for damages asserted in the Complaint, such
authority may prove useful. But the Court’s denial of the preliminary injunction was not premised
on the strength of Plaintiffs’ underlying claims.
Finally, in their reply in support of their motion for reconsideration, Plaintiffs argue that
the Court erred in not heeding the Fifth Circuit case Lartigue v. Northside Indep. Sch. Dist., 100
F.4th 510 (5th Cir. 2024). See Dkt. No. 34 at 3. In particular, Plaintiffs argue that, pursuant to
Lartigue, their claims should not be barred because they are discrimination claims. Id. at 3-6. The
Court has already addressed Plaintiffs’ argument that Lartigue controls, and regardless, this Court
is not bound by its holdings. See Dkt. No. 26 at 13 n.9. In any event, Plaintiffs’ argument
represents a fundamental misunderstanding of Lartigue and this Court’s prior determination. In
Lartigue, the Fifth Circuit found that the plaintiff’s individual ADA claim could proceed despite
the fact that the gravamen of the complaint was a denial of a FAPE. 100 F.4th at 518-19, 23. The
court based this holding on the fact that the plaintiff’s ADA claim sought “compensatory damages
unavailable under the IDEA.” Id. at 519. Just as in Lartigue, this Court made clear that the IDEA
exhaustion bar does not prohibit Plaintiffs’ claims to the extent Plaintiffs seek compensatory
damages. Dkt. No. 26 at 16 (“To be clear, the Court merely finds that the requested preliminary
injunction is barred; the claims set forth in the Complaint itself, which seek only compensatory
damages not provided for in the IDEA, remain live.”). Thus, Plaintiffs have identified no clear
error of law, as this Court’s decision is in accord with that of the Fifth Circuit in Lartigue.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Plaintiffs’ motion to reconsider, Dkt. No. 27, is DENIED.
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ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 13, 2025 Albany, New York
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