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MENDEZ v. NEW YORK CITY DEPARTMENT OF EDUCATION (2020)

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United States Court of Appeals, Second Circuit.

Eileen MENDEZ, individually and as a parent and natural guardian of A.C., Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee.

19-1852-cv

Decided: May 18, 2020

PRESENT: Pierre N. Leval, José A. Cabranes, Robert D. Sack, Circuit Judges, FOR PLAINTIFF-APPELLANT: Karl J. Ashanti (Peter G. Albert, on the brief), Brain Injury Rights Group, Ltd., New York, NY. FOR DEFENDANT-APPELLEE: Eric Lee, Assistant Corporation Counsel (Richard Dearing and Scott Shorr, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.

SUMMARY ORDER

Plaintiff-Appellant Eileen Mendez (“Mendez”) appeals from a May 23, 2019 order of the District Court denying her motion for an order to show cause. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We dismiss Mendez's appeal for lack of jurisdiction. Mendez asserts that she seeks this Court's review of an alleged denial of an application for a preliminary injunction against Defendant-Appellee. But rather than denying a request for preliminary relief based on the merits of the case, the District Court's order merely denied Mendez an evidentiary hearing requested in the motion for an order to show cause. An order denying an evidentiary hearing, even when characterized by an appellant as an order denying an application for a preliminary injunction, is not an appealable interlocutory order. See Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 71–72 (2d Cir. 1991).

CONCLUSION

For the foregoing reasons, we DISMISS the appeal for lack of jurisdiction. We note, however, that the District Court will need to address in the first instance whether there is a live case or controversy in light of new developments relating to the payment of the students’ educational services at the new school. If so, in resolving the merits of the claim in this case, the District Court is now bound by our opinion filed simultaneously herewith in the tandem cases of Ventura de Paulino v. New York City Department of Education, No. 19-1662-cv, and Navarro Carrillo v. New York City Department of Education, No. 19-1813-cv.

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