The court finds vexing, the obstinacy, rigidity and short-sightedness of the Administration of Respondent Hunter College of The City University of New York (Hunter), a public institution filled with students who, in addition to attending school, tend to have jobs and families. Many, are also mothers of young children who are juggling these aspects of their lives in order to attain a college education. To its credit, Hunter has long provided certain child care center to facilitate their students ability to attend classes. It is understood that many of them would not be able to attend college but for the public university system, and moreover would not be able to do so without access to child care.^[FN1] For reasons never made clear during the course of this litigation the Administration of Hunter has insisted that a portion of the Children's Learning Center at Hunter College (CLC) must be taken away and turned into an office. Despite the Court's repeated question of why the office has to be in that very location, no good answer has ever been forthcoming.

Petitioners, student/parents interested in the continuation of the successful child care program located at respondents' Hunter College campus, move, by order to show cause, to enjoin respondents from reassigning room 209 in Thomas Hunter Hall at the Hunter campus, for uses other than that of the licensed childcare program currently in existence. Petitioners also seek a declaration that respondents have breached fiduciary and contractual duties, as well as petitioners' constitutional rights of Due Process and Equal Protection, in attempting to take room 209 out of the childcare program. Respondents cross-move to dismiss the petition, based primarily on petitioners' alleged lack of standing.

Respondent Hunter runs what is by all accounts a stellar childcare program through respondent Hunter College Child Care Center, Inc. (HCCCC). The program is available for Hunter students, such as petitioners Angela Molfetas (Molfetas) and Luz Schreiber, who pay fees on a sliding scale to allow their children to attend the program while the mothers pursue their college educations. The CLC is a creation of a contract among respondent City University of New York (CUNY), Hunter, and HCCCC. CLC Contract, Notice of Motion, Ex. 1.

The 56-page petition in this case credibly documents the CLC as an irreplaceable resource in the lives of the parents and children who are its consumers. The petitioners have provided this court with their affidavits confirming the inestimable value that the CLC has afforded them, allowing them to lift themselves from poverty to realize educational goals, while knowing that [*2]their children are engaged in a nurturing environment. The court has no doubt about the beneficial value of the CLC program.

The issue raised herein is more limited, however. The CLC has traditionally been run out of four rooms in Thomas Hunter Hall, rooms 209, 210, 211 and 212. In December 2008, respondent Michael Escott, Associate Dean of Students at Hunter, sent an e-mail to Zully Colon-Papa, Director of the CLC (Papa), informing her that room 209 would no longer be available for use by the CLC, because it was going to be taken over for other college uses. On May 19, 2009, respondent Eija Ayravainen, Vice President of Student Affairs and Dean of Students, issued a flyer to be distributed to the parents of children enrolled in the CLC, informing them that, effective Fall 2009, room 209 would no longer be available to the CLC. The flyer stated that, "[a]s a result, there may be fewer available placements for both daycare and after school; therefore you are urged to submit your fall application as soon as possible." Petition, Ex. 8.

The publication of the flyer to the CLC parents caused an outcry, in letters and e-mails from various parties concerned about the possible adverse impact on the program as a result of the loss of room 209, including the fact that the program would be unable to accommodate the same number of children as it had previously.

After many protests, Ayravainen circulated a letter dated July 21, 2009, in which he sought to "clear up misconceptions" about the CLC's plans. Petition, Ex. 12. He wrote that the children enrolled in the program will fit comfortably into fewer rooms, because rooms 209 and 210 were both underutilized, and that their uses could be consolidated into one "fully utilized" room by the purchase of convertible furniture. This would free room 209 up for "other vital college programs with needs currently unmet."

The letter went on to say:

Please understand that these changes will have only a very small effect on capacity for enrollment at the CLC. Indeed, there will be no change at all to the preschool program; it will continue to be able to serve the same number of children it has always served. While we are theoretically reducing the capacity of the school-age program by 3 children (from 18 to 15), its spaces have generally not been filled. In fact, in the 16 sessions in the last five years, enrollment has reached capacity only once, and only 4 sessions have had more than 15 students. Thus we do not expect this change to have a significant practical effect on our CLC program ... .

Respondents' objection to the petition is simply that the two petitioners have no standing to bring the proceeding, as neither has suffered any injury as a result of the proposed reallocation of room 209. Specifically, respondents say that " [s]ignificantly, no eligible children, including the children of the two named petitioners, have been denied enrollment in the Center's programs for the Spring 2010 semester" and that, as a matter of fact, "the Center has many fewer children enrolled for the Spring 2010 programs than its capacity, even without room 209." Respondents' Memo. in Support of Cross Motion, at 2.

Petitioners' arguments, in short, are that the decision to reallocate room 209 is arbitrary and capricious; that petitioners' have an interest in the agreement between CUNY and CLC, and that the agreement has been breached by the reallocation of room 209; and that the reallocation of [*3]room 209 has deprived petitioners of constitutional liberty and property interests without due process of law. Their petition also contains many other arguments related to statutory protections petitioners believe are due to them, rights they believe accrue to them as a result of the various contracts among respondents, and constitutional protections which they believe apply, many of which arguments are only slightly related, if at all, to the issue of room 209, having to do with petitioners' larger complaints about respondents' past and potential future management of the CLC.

Petitioners, for example, have set forth an extremely broad agenda, far expanding their complaints beyond the mere loss of room 209, to include claims that Hunter has deliberately under-promoted and mismanaged the CLC, to the detriment of petitioners (Petitioners' Memo. of Law, at 4); has failed to meet numerous statutory and contractual obligations to afford petitioners a "meaningful opportunity to be heard" (id. at 6); has violated, by the actions of the CLC board, fiduciary duties due to the CLC and to petitioners (including actions outside the range of this petition, such as the failure to repair a playground) (id. at 6-7); have retaliated against Papa in her efforts to educate parents concerning the impact the loss of room 209 will have on the CLC; and have committed other acts which allegedly pose the possibility of immediate harm to petitioners.

Throughout the petition, and other submissions, petitioners have claimed to be acting on behalf of themselves, and other "similarly situated" persons. However, this is not a class action; it is a petition brought by two individuals, and on behalf of an entity in which these two parties claim an interest, all of whom have no right or authority to represent any other parties but themselves. Therefore, the court must address the petition as one brought exclusively by the named parties, and will make a determination based on the harm that these individuals claim has been done to them personally, and in their capacity as representatives of the group which they formed to fight for the CLC's benefit.

The issue that must be addressed is whether petitioners lack standing to bring this proceeding. It is unnecessary to discuss the many issues that petitioners raise, nor reiterate that the court does tend to accept, at this stage, that the position of Hunter is arbitrary and capricious. "Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress." Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 812 (2003); see also Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761 (1991). A party asserting standing must show "an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request." Caprer v Nussbaum, 36 AD3d 176, 182 (2d Dept 2006). An "interest" must be more than the interest we have in policy as residents of this City. The rule is that "a plaintiff must show "injury in fact," meaning that plaintiff will actually be harmed by the challenged administrative action. As the term itself implies, the injury must be more than conjectural." New York State Association of Nurse Anesthetists v Novello, 2 NY3d 207, 211 (2004). Simply put, petitioners herein "may not proceed in the absence of standing." Stark v Goldberg, 297 AD2d 203, 204 (1st Dept 2002).

A review of the record shows that petitioners herein have no standing to proceed in this matter. Neither has been denied full access to the CLC. Neither has a child who was not [*4]permitted to attend the CLC. No harm beyond mere conjecture has been suggested as a result of the loss of a single room in the program, a room that petitioners do not deny was never fully utilized. Nor have petitioners demonstrated that their children will not be accepted in the CLC in the future; the fact is, historically, the program has not been operated at full capacity, and there is no indication that this will change. Nothing has been submitted to show that others have been rejected (despite the caveat in Exhibit 8 noting that "there may be fewer available placements for both daycare and after school" as a result of the loss of room 209).

Petitioners' claim that Hunter is deliberately under-promoting the CLC does not add anything to their argument of personal harm. Petitioners state that they intend to prove that the removal of room 209 is part of "a deliberate policy of the Respondents to under-promote and downsize the CLC, based on Hunter policy decisions antithetical to the needs of Petitioners and similarly situated student-parents" (Petitioners' Memo. in Opp. to Cross Motion, at 24), but do not relate that alleged intention to the immediate issue of room 209.

Petitioners' only claim for actual harm is made by Molfetas. She claims that, during the winter intercession of 2009-2010, when the program would ordinarily be in session, room 209 was not available, as it was being reconfigured to accommodate its intended new use. Molfetas points to a letter from the CLC, dated November 30, 2009 (identified as Exhibit 19 but actually tabbed as Exhibit 4), which states, in relevant part: "The Center will not provide service during the 2010 intersession. The staff will be preparing for the change in the physical aspect of the Center. That is, we will be re-organizing the program with one less classroom." The letter concludes that the CLC requests information about enrollment in the spring 2010 CLC as soon as possible.

As a result of the lack of winter intercession service, Molfetas maintains that she was forced to change her major from Sociology to Women and Gender Studies, a major requiring less credits, in order to keep her scholarship. Thus, she claims actual harm. She also anticipates that she will not be able to utilize the CLC during the 2010 summer months, as respondents will be rescheduling the construction of room 209 for that time. Her child was, however, enrolled in CLC for the Spring 2010.

The fact that Molfetas was in the position of having to change her major, due to the lack of services in the intersession, is too tenuous and ephemeral to support standing where the interruption in services was temporary and where the services resumed in the spring. See e.g. Rudder v Pataki, 93 NY2d 273, 279 (1999) (tenuous and ephemeral harm is insufficient to support standing). Moreover, even assuming this alleged injury was sufficient to support standing, this proceeding seeks injunctive relief concerning the continued availability of room 209. However, there is no evidence to suggest that the decision to suspend the services will continue in the future.^[FN2] See e.g. Sergio v Elmhurst Gardens, Inc., 8 AD3d 489 (2d Dept 2004)(preliminary injunction academic, as action to be enjoined already occurred). While, in the context of a preliminary injunction, a moot issue may be reviewed under certain circumstances, no such circumstances appear in this instance. See Duane Reade Inc. v Local 338 Retail, [*5]Wholesale, Department Store Union, UFCW, AFL-CIO, 11 AD3d 406 (1st Dept 2004). "Discretion to review a case otherwise subject to the mootness doctrine exists only if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question [internal quotation marks and citation omitted]." Id. at 406. Molfetas's speculation that she might have difficulties in the future if there had been no 2010 summer intersession program, is not enough to meet this difficult threshold, nor were there any update submissions that would change this status.

To circumvent the lack of injury, petitioners claim that they were injured by a failure to afford them due process, relating to an injury to their persons or property, in the decision to take room 209 away from the CLC. Petitioners claim that a right to "notice and an opportunity to be heard" exists under 18 NYCRR Subpart 358, the Fair Hearing Regulations. However, as respondents point out, 18 NYCRR 358-1.1 is addressed to an "action or determination regarding [an] individual[s]' assistance or benefits." The CLC is not an enumerated benefit under the Fair Hearing Regulations, and the section has no bearing on this proceeding. Petitioners are denied no benefits under these sections as a result of any action directed towards the CLC, much less by the reduction of the CLC by a single room.

Nor can petitioners claim to be third-party beneficiaries of the contract between CUNY and CLC.

Third-party beneficiary rights to a contract are established upon a showing of

"(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost."

The contract among CUNY, Hunter and HCCCC is concerned with the creation of the program as among those parties. The contract shows no intent that the contractors would be answerable to student/parents should there be a perceived breach. The benefit to petitioners was not immediate, but merely incidental to the contract. Thus, petitioners lack standing to sue under it. Mendel v Henry Phipps Plaza West, Inc., 6 NY3d 783, supra. Further, because petitioners have not demonstrated harm by any breach of the contract regarding the repurposing of room [*6]209, they could not pursue respondents under the contract in any event.^[FN3]

Petitioners also have no standing to bring the petition as representatives of the entity which they have formed. According to the complaint, the Hunter Parents' Union (HPU) was formed in 2007 to "advocate for childcare at Hunter" (Petition, ¶ 14), which is concerned with, among other thing, perceived threats to the CLC program predating the problem with room 209. However, "[t]he standing of an organization ... to maintain an action on behalf of its members requires that some or all of the members themselves have standing to sue, for standing which does not otherwise exist cannot be supplied by mere multiplication of potential plaintiffs." Matter of Dental Society of State of New York v Carey, 61 NY2d 330, 333 (1984). Here, no members of HPU have standing to pursue this proceeding, and the inclusion of this entity is without import.

Despite petitioners' submissions, with references to statutes, contracts and constitutional law, petitioners have simply not shown that they have or will sustain injury as a result of the loss of room 209. There is no indication that the program will not be available to them, and no indication that the quality of care will decline. Whether or not respondents are "under promoting" the program has no bearing on the standing question; nor does any other misconduct attributed to them in the petition. Consequently, the petition must be dismissed, despite the court's personal views. Accordingly, it is

ORDERED that the cross motion to deny the petition is granted; and it is further

ADJUDGED that the petition is denied, and the proceeding dismissed.

This Constitutes the Decision, Order and Judgment of the Court.

Dated: January 3, 2011

ENTER:

___________________________

J.S.C.