Appeal of DMYTRO GARAZHA, on behalf of his children ALEXEI, MARIA and DANIEL, from action of the New York City Department of Education regarding transportation.

Decision No. 16,833

(October 15, 2015)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Omar Tuffaha, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny his children transportation to public school for the 2014-2015 school year.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district and is the parent of three children (“the students”) who attend P.S. 53 (“the school”) in Staten Island, New York.  Petitioner lives more than one-half mile from the school and the students receive transportation in the form of full fare Metro Cards pursuant to respondent’s transportation policy, which provides that students in kindergarten through second grade who reside one-half mile or more from their school are eligible for transportation either in the form of contract yellow bus service or in the form of a full fare Metro Card.  In September 2014, petitioner submitted three separate transportation requests for the students on the basis that hazardous conditions exist along the walking route to public transportation.  Specifically, petitioner requested that respondent provide yellow bus service to transport the students to school because they live at a very busy intersection and his wife has to walk almost a mile to accompany them to the bus stop.  Petitioner also alleges the route used to access public transportation does not have sidewalks.  According to respondent’s Office of Pupil Transportation (“OPT”), prior to submitting the hazard variance requests, petitioner requested that OPT add a yellow bus stop outside his home and that his children be provided yellow bus service.  OPT informed petitioner that a yellow bus service stop could not be added to already existing bus routes because doing so would result in those bus routes exceeding five miles in contravention of respondent’s transportation policy.[1]

By letters dated October 28 and November 3, 2014 respondent denied petitioner’s variance requests.  This appeal ensued.

Petitioner alleges that his variance requests should have been granted because the route from his house to access public transportation is hazardous.  Petitioner requests that respondent be directed to grant an exception to its five mile rule, and create a yellow bus stop closer to his home so that his children can be transported safely to school.

Respondent contends that the appeal is untimely.  Respondent further contends that a yellow bus stop cannot be added in the area of petitioner’s home because that would conflict with respondent’s transportation policy.  Respondent maintains that there are multiple other adequate walking paths to access public transportation in petitioner’s area and that no hazardous conditions exist along those routes to warrant a variance.  Respondent maintains that its determination was not arbitrary and capricious and should be upheld.  

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner seeks transportation for the 2014-2015 school year.  Since the 2014-2015 school year has ended, petitioner’s request for transportation is moot.

Even if the appeal were not dismissed as moot, it would be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent argues that the appeal is untimely because it was commenced more than 30 days after its October 28, 2014 determination.  However, the record indicates that respondent notified petitioner of its determination by letters dated October 28 and November 3, 2014, and the record is unclear as to when petitioner actually received the notices.[2]  Even affording petitioner the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be November 4, 2014.  Petitioner thus had to commence his appeal on or before December 4, 2014.  However, the petition was not served until December 10, 2014, beyond the required 30-day time period.  Therefore, the appeal is untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Cassin, et al., 32 id. 373, Decision No. 12,859).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

I am unable to find that respondent’s denial of petitioner’s requests for variances based on a hazard was arbitrary, capricious, unreasonable, or an abuse of discretion.  Petitioner alleges that his children would have to walk a mile to public transportation using the shortest route along a road with no sidewalks.  Respondent’s Chief of Staff for the Office for Pupil Transportation attests in an affidavit that there is a public bus stop from which petitioner’s children can be transported to school that is approximately 50-75 feet from petitioner’s home.  Petitioner has not submitted a reply and has not rebutted respondent’s evidence that his children have access to a public bus stop in close proximity to his home and do not have to walk a mile along an allegedly hazardous route.  Therefore, on this record, petitioner has not demonstrated that respondent is required to provide his children yellow bus service instead of full fare Metro Cards.  Accordingly, on this record, I find that petitioner has failed to meet his burden of proof.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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