Appeal of MARY OVILE, on behalf of her children GINA and JOSEPH, from action of the Board of Education of the Locust Valley Central School District regarding residency.

Decision No. 15,610

(July 13, 2007)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Locust Valley Central School District (“respondent”) that her children, Gina and Joseph, are not district residents.  The appeal must be dismissed.

By letter dated December 14, 2006, respondent’s Director of Personnel and Management Services advised petitioner that, after an investigation, the district had determined that her children were not district residents, and were not entitled to attend district schools.  On December 18, petitioner asked for a review of that decision, and met with school officials on January 3, 2007.

Following that meeting, by letter dated January 4, 2007, respondent’s Assistant Superintendent for Curriculum and Instruction affirmed the earlier determination, and excluded petitioner’s children from school as of January 8, 2007.  (This date was later extended to January 12, 2007, to allow the children to participate in State testing and to allow petitioner some additional time to enroll the children elsewhere.)

Petitioner commenced this appeal on January 5, 2007.  Her stay request was denied on January 16, 2007.

Respondent’s answer, verified February 7, 2007, and received by my Office of Counsel on February 14, indicates that petitioner applied to re-register her children on January 29, 2007, at which time she supplied new and additional documentation that had not been reviewed by respondent on January 3.  Based on these new materials, respondent re-admitted petitioner’s children on February 6, 2007.

It appears that the additional materials presented to respondent on January 29 are the same materials attached to petitioner’s reply, dated January 9, 2007, but not received by my Office of Counsel until February 14, 2007.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In an appeal brought pursuant to Education Law §310, the Commissioner of Education exercises appellate, not original, jurisdiction (Appeal of Looman, 39 Ed Dept Rep 370, Decision No. 14,262; Appeal of Robnett and Morith, 37 id. 679, Decision No. 13,956; Appeal of Ingraham, 32 id. 191, Decision No. 12,801).  By submitting numerous additional documents that could not have been considered or evaluated by respondent in reaching its determination of January 4, 2007, petitioner is in essence asking me to make an original decision on the residency of her children, rather than to review respondent’s determination.  Under normal circumstances, if petitioner’s children were still excluded from school, it would be proper to remand the matter to respondent for prompt consideration of the new materials.

In this case, however, respondent has already re-admitted petitioner’s children, although, according to its answer, “the District still questions petitioner’s claim of residency . . .”  Respondent purports to have re-admitted petitioner’s children “without prejudice to the instant appeal.”

Under these circumstances, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  The re-admission of petitioner’s children based on new documentation has eliminated the need to decide this appeal, and I will not do so as an academic exercise (Appeal of Gierlach, 31 id. 123, Decision No. 12,591).

If any further determination as to residency is to be made, it must first be made at the district level pursuant to Commissioner’s regulation §100.2(y).

THE APPEAL IS DISMISSED.

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