Letitia James Letitia James. Photo Credit: David Handschuh/ALM

The Court of Appeals has dismissed New York City Public Advocate Letitia “Tish” James’ effort to appeal a decision from an appellate court that said her office did not have the statutory authority to bring a lawsuit against the city.

The decision means James will not get her day in court on a lawsuit that alleged the New York City Department of Education failed to provide air conditioning on school buses transporting students with special needs, which she said is required by city code.

James, aside from serving as the city’s public advocate since 2014, is now seeking to become the state’s next attorney general, which decidedly does have the right to sue. James, who secured the Democratic nomination in last month’s primary election, is vying with Republican Keith Wofford for the attorney general post.

The Court of Appeals said in its decision on Thursday, which is only two sentences long, that James was late in filing her motion to appeal a 2017 decision from the Appellate Division, First Department. A spokeswoman for James said they never received a notice of entry from the city’s education department, so they did not know when the clock started to file their motion.

“Throughout her time as Public Advocate, Letitia James has pushed the envelope to ensure New Yorkers are protected, especially our most vulnerable populations,” said Delaney Kempner, spokeswoman for the public advocate. “It is unconscionable that anyone would force children with disabilities to sit on dangerously hot school buses and Public Advocate James has no regrets about sticking her neck out to protect our children.”

James could move to reargue her motion to appeal to the Court of Appeals. That may be a long-shot bid, though, since the high court’s decision was based on the timing of the motion rather than the content.

The decision James was appealing from the Appellate Division said last year that James did not have the power to bring litigation against the city in her role as public advocate.

“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 [the New York City Charter],” the appellate court said.

The court had also decided that James, even if she could bring the lawsuit, lacked standing to do so. It said, at the end of the day, her office did now show that it would suffer harm if it lost the lawsuit. She pursued the suit as a plaintiff in the litigation rather than as a third party.

James filed the lawsuit in 2015 after her office received complaints of students with disabilities riding on school buses with temperatures as high as 91 degrees during the summer months. The city code requires air conditioning on school buses carrying children with disabilities when the temperature outside the bus is above 70 degrees.

James said she gave parents thermometers so their child’s transportation aide could record temperatures on the school bus. Those aides then created logs of the recorded temperatures, which she claimed were often well above what the city code mandates.

The petition focused on the experiences of children who attend District 75, a citywide school district serving students with special needs. Students attend the district throughout the summer due to the nature of the supportive programming.

James filed the petition, which was heard in Manhattan Supreme Court, to force the city to require contractors to provide air conditioning on buses carrying students with disabilities. She was also asking the court to enforce stronger oversight by the city’s education department on bus temperatures.

The trial court initially allowed the lawsuit to move forward, but the New York City Law Department appealed the decision. Aaron Bloom, senior counsel at the department, argued that James did not have the authority to sue. The Appellate Division agreed.

The law department declined to comment on the Court of Appeal’s decision on Thursday to dismiss James’ motion for leave to appeal.

Matthew Brinckerhoff, a founding partner of Emery Celli Brinckerhoff & Abady in Manhattan, argued for James on the appeal to the high court. He did not immediately return a call for comment on the decision Thursday.

James is competing in the general election for state attorney general against Wofford, a co-managing partner of the New York City office for Ropes & Gray. Wofford is on a leave of absence from the firm, where he focuses on corporate restructuring.

James beat three other challengers in the Democratic primary for attorney general in September, garnering more than 40 percent of the vote. She often touted her lawsuits against the city and state, some of which were unsuccessful, during the primary campaign.

She is a lawyer by trade, starting her career as a public defender with the Legal Aid Society. She was also the regional head of the state attorney general’s office in Brooklyn before her election to the New York City Council.

The general election is set for Nov. 6.


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