Appeal of MADELEINE ABBADESSA, on behalf of her son MATTHEW, from action of the Board of Education of the Carle Place Union Free School District regarding transportation.

Decision No. 15,657

(August 31, 2007)

Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Carle Place Union Free School District (“respondent”) denying her son, Matthew, transportation to and from a nonpublic school for the 2007-2008 school year.  The appeal must be dismissed.

On or about May 1, 2007, petitioner requested transportation for Matthew to and from St. Dominic High School (“St. Dominic”), a nonpublic school, for the 2007-2008 school year.  By letter dated May 7, 2007, petitioner acknowledged that her request was late, but indicated that this was due to her knee surgery and subsequent rehabilitation.

By letter dated May 23, 2007, respondent’s superintendent advised petitioner that her transportation request had been considered and denied by respondent.  The letter explained that petitioner had missed the district’s April 1 deadline for transportation requests to nonpublic schools and that providing transportation for Matthew would result in an additional cost of over $4,000 for the 2007-2008 school year.

This appeal ensued.  Petitioner asserts that Matthew is entitled to transportation because petitioner has established a reasonable explanation for her delay in submitting a transportation request.  Petitioner also claims that respondent will not incur additional costs in transporting Matthew to St. Dominic.

Petitioner contends that respondent failed to submit a timely answer to the petition.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Since the petition was served on June 29, 2007, respondent was required to serve its answer by July 19, 2007.  However, counsel for respondent did not make a timely request for an extension of the time to answer, did not serve an answer until July 24, 2007 and has not offered a sufficient 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 true (8 NYCRR §275.11; Appeal of Bonham, 44 Ed Dept Rep 179, Decision No. 15,140).  Since I have not considered the answer, I need not consider petitioner’s reply.

Education Law §3635(2) requires that an application 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 or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  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 S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373; Decision No. 14,884; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Davila, 41 id. 419, Decision No. 14,732).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744).

Petitioner admits that she did not submit a timely request for transportation.  Her excuse is that she has health problems, including multiple sclerosis, and that she had a “painful and difficult rehabilitation” after knee surgery, during which time she also worked full-time.  While I am certainly sympathetic to petitioner, under the law it is ultimately her responsibility to submit a timely request for transportation (seee.g.Appeal of Haiimpour, 47 Ed Dept Rep __, Decision No. 15,621; Appeal of Vigliotta, 40 id. 344; Decision No. 14,493).  Missing the transportation deadline for the reasons stated is not a basis for excusing her failure to make a timely transportation request (Appeal of Haiimpour, 47 Ed Dept Rep __, Decision No. 15,621; Appeal of Vigliotta, 40 id. 344, Decision No. 14,493; Appeal of Tarricone, 38 id. 623, Decision No. 14,105).  This is especially true in this case where Matthew has attended nonpublic school for the past seven years and petitioner has not missed the deadline in the past.  Further, the record indicates that petitioner has received medical care for multiple sclerosis for over 10 years, and a letter from her physical therapist states that her post-surgery physical therapy began on November 28, 2006 – months before the April 1 deadline.

Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Cusumano, 42 id. 309, Decision No. 14,864; Appeal of Gal, 42 id. 170, Decision No. 14,809).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (seeAppeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

In its May 23, 2007 letter denying petitioner’s transportation request, respondent stated that providing transportation for Matthew would result in an additional cost of over $4,000 for the 2007-2008 school year.  Petitioner claims that the district will not incur any additional expenses in transporting Matthew to St. Dominic because another student whose timely request for transportation to St. Dominic was approved will not be attending that school during the 2007-2008 school year.  However, petitioner has introduced no evidence to support this claim or that respondent will continue to be charged for that student.  Accordingly, based on the record before me, I find that petitioner has not met her burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which she seeks relief.

THE APPEAL IS DISMISSED.

END OF FILE