Appeal of FRANCINE McNEIL, on behalf of her daughter VIANNA, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 15,671

(October 10, 2007)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her daughter, Vianna, is not a district resident.  The appeal must be dismissed.

Petitioner resides outside respondent’s district, and Vianna’s grandmother resides within respondent’s district.  By letter dated May 30, 2007, petitioner represented that Vianna was residing with her grandmother and requested that Vianna be permitted to continue her education at respondent’s high school.  Although not included in the record, respondent apparently informed petitioner that Vianna was not a district resident and would not be permitted to attend its schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 26, 2007. 

Petitioner alleges that Vianna resides with her grandmother due to family conflicts and contends that Vianna will reside with her grandmother until she graduates from high school.  Petitioner maintains that Vianna’s grandmother exercises control over Vianna’s activities and behavior and provides Vianna with shelter and food.

Respondent alleges that service of the petition was improper.  Respondent also alleges that Vianna is not a district resident because there has been no transfer of custody and control to her grandmother.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).  The record reflects the petition was served upon a secretary to respondent’s director of pupil services, who is not designated to accept service.  Since the petition was not personally served on the district clerk, a member of the board of education, the superintendent or a superintendent’s designee, there was no valid service of process and I lack jurisdiction over this appeal (Appeal of Sailsman, 45 Ed Dept Rep 61 Decision No. 15,260; Appeal of Atwal, 43 id. 406, Decision No. 15,033).

While the appeal must be dismissed for lack of jurisdiction, I note that petitioner retains the right to reapply to the district for admission on her child’s behalf at any time and to present information for respondent’s consideration (Appeal of Washington, 42 Ed Dept Rep 197, Decision No. 14,820; Appeal of Perez, 42 id. 71, Decision No. 14,799;  Appeal of Santoianni, 40 id. 237, Decision No. 14,470).

THE APPEAL IS DISMISSED.

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