New York’s nonpublic schools must provide an education to their students that is substantially equivalent to that provided in public schools. What happens, however, if a parent chooses to send their children to a nonpublic school, and the school either cannot or chooses not to satisfy the Commissioner of Education’s substantial equivalency standards? The Court of Appeals addressed this question recently in a case challenging the Commissioner’s authority to adopt those regulations that allow the Department to declare those nonpublic schools noncompliant. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week.
Court of Appeals
Education Law, Substantial Equivalency of Nonpublic Schools
Issue: Were the Commissioner of Education’s substantial equivalency regulations for nonpublic schools properly promulgated?
Facts: The New York Constitution guarantees every child a sound basic education, whether obtained in the public schools or elsewhere. Under the Education Law, “[i]f a child receives instruction elsewhere, the instruction shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides. Failure to comply with the compulsory education and substantial equivalency requirement may subject a parent or custodian to a neglect proceeding in Family Court, or criminal penalties including fines and imprisonment. The Education Law provides that local school authorities (LSAs) have primary responsibility for ensuring that children receive the required education. In 2018, the Legislature amended the statute’s substantial equivalency requirement for nonpublic schools that offer bilingual programs and extended school hours. The enactment—known as the Felder Amendment—provides that, for this subset of nonpublic schools, the Commissioner shall make any final substantial equivalency determinations. In response to the Felder Amendment, the Commissioner promulgated 8 NYCRR part 130, effective September 28, 2022, addressing the procedure for substantial equivalency determinations and enforcement.” For nonpublic schools, the regulations provide several pathways to demonstrate substantial equivalency. Those schools that choose not to participate in one of those pathways or can’t satisfy their requirements, however, “the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements of . . . the Education Law.”
Petitioners, five nonpublic schools, organizations representing their interests, and the parents of the schools’ students, commenced this challenge to the substantial equivalency regulations. Although Supreme Court generally upheld the regulations, “it declared invalid 8 NYCRR 130.6 (c) (2) (i) and 8 NYCRR 130.8 (d) (7) (i)—the regulations deeming a noncompliant nonpublic school no longer a school fulfilling the compulsory education requirements—on the ground that these provisions exceeded the Commissioner’s authority.” The Appellate Division, Third Department reversed and declared those regulations properly promulgated.
Holding: The Court of Appeals affirmed, holding first that petitioners’ challenges to the substantial equivalency pathways were moot because the Legislature changed them in statutory amendments that became effective just before oral argument of the appeal. Given the procedural posture of the appeal, the Court noted, its review was limited to “petitioners’ facial challenge to the Commissioner’s authority to promulgate” the regulations deeming a noncompliant nonpublic school no longer a school fulfilling the compulsory education requirements, and did not include a facial challenge to the substantial equivalency regulations in their entirety.
Turning to the merits, the Court held, “[a] determination that a nonpublic school has failed to meet the substantial equivalence requirement leads naturally to this acknowledgement—that the nonpublic school fails to comply with the Education Law’s substantial equivalency mandate and thus is not a school that fulfills the statutory requirement for compulsory education. Far from exceeding the Commissioner’s statutory authority, the regulations simply establish a mechanism by which the statutory mandate is enforced. In this regard, instead of being contrary to the statute’s purpose, the challenged regulations are a natural consequence flowing from the statutory language itself.” The Court explained, “nothing in these provisions requires that parents ‘unenroll’ their children from a nonpublic school deemed not to provide substantially equivalent instruction. Nor do the regulations authorize school closures. The provisions merely state that the nonpublic school does not provide substantially equivalent instruction—a determination well within the authority provided to the Commissioner by the statute. The parent or custodian must determine how then to ensure their compliance with the Education Law.” So any choice to remove the student from a noncompliant nonpublic school is the parent’s to make, with the risk of a finding of neglect or criminal sanctions looming large in that decision.
Matter of Bentkowski v City of New York, 2025 NY Slip Op 03690 (Ct App June 18, 2025)
Promissory Estoppel, Employment Law, Health Insurance
Issue: Can retirees from New York City employment prevent the City from discontinuing the health insurance options that the City had previously provided?
Facts: “New York City is required by law to provide health insurance coverage for persons retired from City employment. For more than 50 years, the City fulfilled its responsibility by offering a choice of health insurance plans. Options for Medicare-eligible retirees included Medicare supplemental plans—also known as Medigap plans—and Medicare Advantage plans (MAPs). Whereas a Medigap plan supplements traditional Medicare by covering additional out-of-pocket costs, a MAP is an all-in-one alternative to traditional Medicare that is funded primarily through Medicare subsidies. The most popular plan the City offered was Senior Care, a Medicare supplemental plan. In 2021, to cut costs, the City made significant changes to its health benefits program . . . [and] decided to discontinue Senior Care and most other options and enroll all retirees in a custom-designed MAP negotiated with and to be managed by insurer Aetna Life Insurance Company. Petitioners, nine retirees and one organization, commenced this proceeding asserting 12 causes of action seeking, among other things, to enjoin the City from eliminating their existing health insurance plans.”
Petitioners alleged “that throughout their employment the City repeatedly promised them that upon retirement it would provide and pay for a Medicare supplemental plan, that they reasonably relied on those promises by making financial, employment, and retirement decisions based on the guarantee of Medicare supplemental coverage for life, and that they will suffer injury if removed from their existing health insurance plans due to higher copays, prior authorization requirements, and their preferred providers’ refusal to accept the Aetna MAP . . . To support the allegation of a clear and unambiguous promise of Medicare supplemental insurance coverage for life, petitioners submitted copies of Summary Program Descriptions (SPDs) that the City provides its employees and retirees on an annual basis to inform them of their health insurance options,” and which uniformly provided that retirees would have a “choice to participate in traditional Medicare with a City-paid supplemental plan.” Respondents answered and argued that the SPD statements were not a clear and unambiguous promise that the insurance options could not be changed in the future through collective bargaining.
Supreme Court held that the City’s actions were barred by promissory estoppel. The Appellate Division, First Department affirmed, “concluding that, for more than 50 years, the City made a clear and unambiguous promise that upon an employee’s retirement, Medicare would provide the first level of hospital and medical insurance benefits and the City’s benefits program would provide the second level to fill in the gaps . . . The Court further concluded that petitioners reasonably and foreseeably relied on the promises because they chose public employment over often higher-paying private-sector employment and chose their residences and healthcare providers based on the availability of traditional Medicare, and that petitioners demonstrated injury to those whose providers would not accept the Aetna MAP.”
Holding: The Court of Appeals reversed, holding that “petitioners have failed to establish the existence of a clear and unambiguous promise” on which they justifiably relied. Noting first that the Court had not in the past, and need not in this case, formally recognize a promissory estoppel claim over an issue subject to mandatory collective bargaining, the Court explained that “[t]he SPDs themselves contain nothing that could be construed as a clear and unambiguous promise of Medicare supplemental insurance coverage for life. To the contrary, we agree with the City that the language in the SPDs is descriptive and for informational purposes only . . . To the extent that one might infer a commitment of sorts from the SPDs’ language, it does not rise to the level of a clear and unambiguous promise that the City would pay for Medigap coverage, as opposed to some other form of health insurance coverage, for the rest of every retiree’s life.” Without a clear and unambiguous promise on which petitioners could have relied, the Court held, their promissory estoppel claim necessarily failed. Because the courts below had not addressed the petitioners’ other challenges to the City’s actions, the Court remanded the matter to Supreme Court for a determination on petitioners’ remaining claims.
Landlord-Tenant, Municipal Law
Issue: Did the City of Kingston properly declare a housing emergency under the Housing Stability and Tenant Protection Act, opt in to rent stabilization, and adopt rent guidelines for covered units?
Facts: “In 2019, the Legislature enacted the Housing Stability and Tenant Protection Act (HSTPA), which expanded the rent stabilization scheme originally effective only in the City of New York and Nassau, Westchester, and Rockland counties to all municipalities in the state). Under the ETPA, municipalities with an ongoing housing emergency may opt in to rent stabilization and create a rent guidelines board, which may in turn promulgate guidelines governing rental rates for covered units within the municipality. The City of Kingston was one of the first municipalities in the state to exercise this newly granted authority.” As required under HSTPA, “the City commissioned a survey . . . to evaluate the vacancy rate for housing units in multifamily buildings with six or more residential units constructed prior to January 1, 1974—a definition that includes all housing units potentially subject to the ETPA. The 2019 survey used data from local governmental records to develop a list of residential properties that fell within the study’s scope and sent a form to the owners of those properties by U.S. certified mail.” The survey “recorded units as ‘vacant’ if they were unoccupied and available for rental at the time of the survey response,” or if the owners did not respond to the mailing after follow up efforts. The 2019 survey ultimately “reported a 5.8% vacancy rate across all surveyed properties.” After COVID, the City updated the study and found a vacancy rate less than 2 percent.
Because the City’s vacancy rate did not exceed 5 percent, on August 1, 2022, the City declared a housing emergency and opted in to the ETPA. Based on that declaration, the City’s “newly-created KRGB adopted two guidelines on November 9, 2022, pursuant to the ETPA. The first, a ‘fair market rent’ guideline, provided that a tenant could seek a refund of rents paid in excess of the fair market rent between January 1, 2019, and July 31, 2022, by filing an appeal with DHCR. The guideline defined a unit’s ‘fair market rent’ as 116% of the rent charged for that unit on January 1, 2019. The second, a ‘rent adjustment’ guideline, required that rent for one- and two-year leases commencing between August 1, 2022, and September 30, 2023, be reduced by 15% from the initial legal regulated rent.”
Petitioners, private landlords and an association representing them, commenced this Article 78 proceeding challenging the City’s housing emergency declaration and the two rent guidelines. Supreme Court rejected the petitioners’ challenge to the housing emergency declaration, holding that it was the City’s responsibility to conduct the vacancy surveys, and the contrary study provided by petitioners did not make the City’s study unreasonable. The Court, however, annulled the rent guidelines as impermissibly retroactive and outside of the City’s lawful authority. The Appellate Division modified by upholding the City’s rent guidelines, concluding that the rent guidelines were not retroactive because DHCR rules prevented refunds of rents charged more than two years before the emergency declaration and that the annual rent guidelines do not require the City to adjust rents upwards rather than downwards, as the City did here.
Holding: The Court of Appeals affirmed, explaining that “[w]hen a plaintiff challenges an emergency declaration made pursuant to the ETPA, the key question is whether the vacancy rate finding rests a reasonably reliable and relevant measure of the municipality’s actual vacancy rate for the relevant class of housing accommodations. The burden of demonstrating that a finding does not meet this standard rests on the plaintiff. The support for a municipality’s emergency declaration need not be unimpeachable, and it may be impossible for any set of data to perfectly capture the exact real-time vacancy rate of a class of housing accommodations. The mere fact that the data underlying an emergency declaration could be more thorough or comprehensive should not suffice, standing alone, to invalidate a declaration. On the other hand, if challenged, a municipality should be able to explain why a survey was reasonably likely to yield reliable and relevant results and should not ignore obvious flaws in survey design that would distort the results.” And here, the Court held, the City’s study was designed to yield relevant and reliable vacancy data. The petitioners’ objections to the studies were “minor methodological disputes” that did not undermine their reliability, and notably the City responded to each of the disputes to explain how petitioners’ misunderstood the methodology that was used. Thus, the Court determined that the petitioners failed their burden to show the City’s housing emergency declaration was based on a flawed and unreliable vacancy study.
The Court rejected the petitioners’ arguments that the rent guidelines were impermissibly retroactive under the Court’s prior holding in Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020]). “The fair market rent guideline challenged here does not squarely implicate Regina. Although DHCR acknowledges that applying the guideline to rents charged before HSTPA’s effective date might pose retroactivity concerns, the record includes no such refund. Indeed, DHCR’s own regulations prohibit DCHR from issuing a refund order ‘relat[ing] to a period more than two years prior to the local effective date’ of an emergency declaration. As applied here, that prevents the issuance of any refunds for rent paid prior to August 1, 2020. Petitioners instead seek facial relief invalidating the guideline on the theory that it may lead to rent refunds for rents charged prior to the local effective date of Kingston’s housing emergency. Regina does not prohibit that. Unlike in Regina, no provision of state or local law ‘inoculated’ property owners from DHCR refund claims prior to Kingston’s declaration of a housing emergency on August 1, 2022. To the contrary, once HSTPA became effective on June 14, 2019, state law explicitly provided that rental units in Kingston might eventually become subject to ETPA regulation.” Finally, the Court held that the petitioners’ challenge to the rent reduction guideline was unpreserved.
New York Appeals 