Staten Island mom battles City Hall over school bus issue

STATEN ISLAND, N.Y. -- Gina Sgarlato-Benfante is a parent of a seventh-grader at the Marsh Avenue School for Expeditionary Learning -- one of two borough schools being denied yellow bus service next year. She also happens to be a lawyer. Ms. Sgarlato-Benfante has filed something of a David vs. Goliath legal action against the city, challenging its decision not...

STATEN ISLAND, N.Y. -- Gina Sgarlato-Benfante is a parent of a seventh-grader at the Marsh Avenue School for Expeditionary Learning -- one of two borough schools being denied yellow bus service next year.

She also happens to be a lawyer.

Ms. Sgarlato-Benfante has filed something of a David vs. Goliath legal action against the city, challenging its decision not to provide yellow bus service to her son.

The lawsuit -- which has been stayed temporarily -- and the city's refusal to provide busing to students at two schools, including A.J. Benfante, 12, hinge on the wording of a law passed earlier this year to restore yellow bus service.

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Staten Island education panel offers solution to yellow bus issue

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The lawmakers who spearheaded the legislation, Assemblyman Michael Cusick (D-Mid-Island) and Sen. Andrew Lanza (R-Staten Island) say it was intended to restore yellow bus service to all the borough's seventh- and eighth-graders, long allowed to take the bus thanks to a borough-wide variance.

The Department of Education, however, contends the law simply rolls back the clock to 2009, and returns the variance to schools that had bus service for seventh and eighth graders then. No new schools would be awarded the variance -- and neither would the Marsh Avenue School, which was denied busing in 2009, and the Staten Island School of Civic Leadership, which didn't yet have a seventh grade.

Ironically, the death of a Civic Leadership student, Aniya Williams, who was hit by a truck en route to a city bus on her last day of school in 2010, helped spur lawmakers into action.

"That's why they did it, because that little girl got killed, and meanwhile that school won't get it," Ms. Sgarlato-Benfante said.

SUIT FOCUSES ON INTENT

Ms. Sgarlato-Benfante's suit, filed against the city, the Department of Education, the Office of Pupil Transportation, and OPT's executive director Alexandra Robinson, hinges on the city's interpretation of the law which goes against the intent of the legislators.

She argues "the intention of the legislation was to reinstate the prior borough-wide variance granted to Richmond County. The legislative history makes it clear that the state was amended to address a 'dangerous situation' on Staten Island where public transportation is limited and a child was killed when crossing several lanes to catch her city bus home from school."

In its response, the city argues that the legislative history for the law doesn't prove it covers the entire borough, and quotes Cusick using the language "restoring the school buses" and Assemblyman Nicole Malliotakis (R-Mid-Island) saying "restore those variances that those seventh and eighth graders did have." The city argued legislative documents show the legislation only restored the variance "to its pre-September 2011 level" and was written in a way to "not place a significant burden on DOE."

In a statement, city Law Department Senior Counsel Janice Birnbaum said the DOE's "actions in this situation were appropriate and legal."

"We believe the petitioner's claim has no merit and that she read the amendment to the statute incorrectly," Ms. Birnbaum said.

In response to the suit, the DOE reiterated its reading of the law as restoring service only to schools that had it in 2009-2010.

"If we were to provide busing to the two schools, then it would trigger the 'like circumstances' provision of State law and force us to provide similar busing to all middle schools citywide," the statement reads.

PURSUING A HAZARD VARIANCE

But Ms. Sgarlato-Benfante's lawsuit is currently on hold, stayed while she first exhausts her other legal options by applying for an individual hazard variance for her son. Any student at either school excluded from bus service can apply for a hazard variance, which grants bus service to students who otherwise wouldn't qualify because of dangerous commutes.

If Ms. Sgarlato-Benfante's hazard variance is denied, she may appeal to State Education Commissioner John King. If she loses there as well, her lawsuit -- known as an Article 78 proceeding, which challenges a city decision -- could continue.

Without a yellow bus, her son's commute from Sunnyside to New Springville will be dangerous, she said, and includes walking a street without sidewalks, heading over the Staten Island Expressway, walking nearly a mile and catching two buses -- one of them at the corner of Victory Boulevard and Clove Road, a notoriously dangerous intersection.

"This is where he'd have to wait at the bus stop, to take the bus. He's 12," Ms. Sgarlato-Benfante said. "And they're just going to hand him a MetroCard and say 'Here you go.' That's what they want to do."

But Ms. Sgarlato-Benfante said winning a hazard variance would help only her son -- not his classmates at Marsh and the students at the School for Civic Leadership. The lawsuit could do more, she said.

"If I get the variance for him, it's not going to cover the whole issue," she said. "Which is really a disgrace."

Ms. Sgarlato-Benfante said she offered her help to other parents with variances, as well -- calling the process a "minefield." She's been waiting weeks for a response, she said, and the first day of school is only getting closer.

"You can't even get an individual (on the phone)," she said. "You can't get any answers."

Ms. Sgarlato-Benfante and had originally hoped to file a class-action suit, but couldn't get everyone's information in time.

"I didn't want to lose time," she said. "Meanwhile, now here we are -- it's August 21, and right now the answer we're getting is 'No, You're not getting a bus.' That's the answer we're getting."

In the meantime, Sen. Lanza's office has been helpful, she said. But if they can't persuade the city to provide the schools bus service under the current law, there's not much they can do to help her son A.J. with a commute the MTA Trip Planner says would take more than an hour.

"The only thing Lanza's office can do is amend the legislation. By the time they do that, he's going to be in high school," Ms. Sgarlato-Benfante said. "If my variance is denied, I have to continue with the lawsuit."