Appeal of JENNIFER CALABRESE, on behalf of CHRISTOPHER SANTUCCI, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

 

 

(August 19, 2003)

 

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

 

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District ("respondent") to deny her son transportation to a nonpublic school.  The appeal must be sustained.

     Petitioner contends that respondent failed to submit a timely answer to the petition.  Section 275.13 of the Commissioner"s regulations  requires a respondent to answer a petition within 20 days from the time of service.  Extensions may be granted at the discretion of the Commissioner upon timely application therefor (8 NYCRR "276.3).  Since the petition in this appeal was served on April 29, 2003, respondent was required to serve its answer by May 19, 2003.  However, counsel for respondent did not request an extension of the time to answer, did not serve an answer until June 10, 2003 and has offered no excuse for the late submission.  Accordingly, I find no basis to accept the late answer, and the factual allegations set forth in the petition are deemed to be true statements (8 NYCRR "275.11; Appeal of Laughlin-Jackson, 41 Ed Dept Rep 290, Decision No. 14,688; Appeal of Bronico, 32 id. 54, Decision No. 12,755; Appeal of Walker, 31 id. 32, Decision No. 12,558).

     Pursuant to Education Law "3635(2), a request for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested (Appeal of Aguanno, 41 Ed Dept Rep 326, Decision No. 14,700; Appeal of Sarant, 41 id. 70, Decision No. 14,617; Appeal of Joanne M., 40 id. 686, Decision No. 14,584).  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Sarant, supra; Appeal of Joanne M., supra).

Due to respondent"s failure to submit a timely answer, I deem all of the allegations in the petition to be true.  Petitioner asserts that on March 31, 2003, her husband mailed a written transportation request for the 2003-2004 school year to respondent by depositing the same in a United States Post Office mailbox.  Consequently, on the record before me, I conclude that petitioner"s transportation request was timely made and petitioner"s son is entitled to transportation by respondent to the nonpublic school described within such request for the 2003-2004 school year  (Appeal of Hendrick, Sr., 37 Ed Dept Rep 188, Decision No. 13,838; Matter of Kahane, 9 id. 68, Decision No. 8,062).

 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide petitioner"s son with transportation to his nonpublic school for the 2003-2004 school year.

 

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