A Surprise in Court: A School Board, Thought to Be Obsolete, Still Exists

On Jan. 9, 2003, Jamie Perez was slashed by two fellow students at Evander Childs High School in the Bronx. He recovered, and his mother, Nancy Torres, sued the City of New York for negligence, claiming lax security.

Her lawyer, Richard J. Katz, might ordinarily have filed suit against the Board of Education, except that a year before the assault, the State Legislature had voted to vest the mayor with the power to appoint the schools chancellor and to replace the board with a Panel on Education Policy, a majority of whose members the mayor appointed.

City lawyers insisted nonetheless that Ms. Torres had sued the wrong party – that the education board was still liable. But a Bronx judge ruled that “in light of the wholesale transfer of power and responsibility from the Board of Education to the mayor, the city may not now shield itself from liability.” An appellate court, however, reversed the decision, in effect voiding Ms. Torres’s claim.

“The case got dismissed,” Mr. Katz said. “It was a travesty.”

A separate case now pending before the state’s highest court, the Court of Appeals, raises the same issue of liability in a case involving a suit against the city’s school system.

Many lawyers and their clients have discovered that if you have a legal complaint against New York’s public school system, you cannot fight City Hall. You have to specifically sue the department or, better yet, the Board of Education.

You may have thought the board was abolished years ago. That after the Legislature established a mayoral Department of Education and after the board’s totemic Downtown Brooklyn headquarters at 110 Livingston Street was converted to condos the embodiment of the school system’s immutable bureaucracy was finally defunct. That if you were slashed or slipped when you arrived for a parent-teacher conference your recourse now would be to sue the city rather than the obsolete board.

You would have been wrong.

“No defendant is duty bound to tell you you’re suing the wrong party,” says Arnold E. DiJoseph III, a lawyer who on Ms. Torres’s behalf unsuccessfully asked the state Court of Appeals to review the appellate division’s absolution of the City of New York in the Perez case. It declined.

Almost no one wants to make it easier to sue in this litigious society. But lawyers for the city sometimes seem to have gone out of their way not to volunteer that the school board, which most New Yorkers believe went the way of the blackboard, still exists legally as the governing corporate incarnation of the Department of Education and its Panel on Educational Policy.

“The Board of Education is the name in the State Education Law,” said Marge Feinberg, a spokesman for the department (not for the board).

On more than one occasion – no one seems to know how many — negligence lawyers were surprised to be advised by the Education Department that their notice of claim was “returned because the Department of Education is not the legally proper entity upon which to serve such document.”

Worse, still, is when they filed suit against the city, only to learn later – too late, because the 90-day period in which to file again had expired – that the city was deemed not liable legally for the school system’s mistakes. (To add to the confusion, officials say legal papers may be served on the city’s Law Department at 100 Church Street.)

Lawyers for the city liken the board’s legal standing to that of the Health and Hospitals Corporation and the Housing Authority, which also must be named specifically in lawsuits. Of the three, though, the city’s official directory lists only the Education Department as a mayoral agency.

As far as the public is concerned, responsibility for the school system has been vested for a decade in a mayoral department. Since Mayor Michael R. Bloomberg persuaded the Legislature to scrap the old school board, he appoints the chancellor and a majority of the 13 members of the Panel on Educational Policy and has volunteered to be held accountable for its successes and failures.

In 2002, when the mayor was granted control, a Bloomberg spokesman explained, “We didn’t pursue the name change legally, but we’re pursuing it in every other sense, from stationery to business cards to when it’s talked about publicly.”

Googling “Board of Education” and “City of New York” whisks you to the official Department of Education Web site, which says the Panel on Education Policy “took the place of the Board of Education.”

Still, state education law specifies that “the board of education of each city school district of a city with 125,000 inhabitants or more according to the latest federal census is hereby continued as a body corporate.”

Ninfa Segarra, the last president of the old board, said Thursday that she was surprised that it still existed, adding that the board’s unanticipated survival “may be a way of hiding ongoing litigation.”

While the Perez case was dismissed in 2007 by the Appellate Division, which ruled that the city and the board remained “separate legal entities,” Mr. Katz, the young man’s original lawyer, is still being sued by the family for malpractice because he filed suit against the city instead of the board. “I didn’t do anything wrong,” Mr. Katz said, “but I don’t blame him.”

Mr. DiJoseph, who handled the appeal, was asked why lawyers still sometimes sue the city by mistake. “Bad news travels slowly,” he replied.

“For every other purpose they’re a city agency except for this one,” Mr. DiJoseph said of the department, “and the only reason for them not to be a city agency is not to pay the money.”

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