Appeal of B.L., by his parents, from action of the Board of Education of the New Hyde Park-Garden City Park Union Free School District regarding residency.

Decision No. 17,130

(July 20, 2017)

Lamb & Barnosky, LLP, attorneys for respondent, Sharon N. Berlin, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal what they allege is the determination of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (“respondent”) that their son, B.L., is not a district resident.[1]  The appeal must be dismissed.

Petitioners set forth no allegation relating to their son’s residency in their petition other than that he resides within respondent’s district with his parents and brother.  Petitioners request a determination that B.L. is a resident of respondent’s district and is entitled to attend its schools without payment of tuition.

Respondent maintains that the petition must be dismissed because it is not verified and because petitioners’ claim is premature and seeks an advisory opinion.  Respondent maintains that B.L. has not been denied admission to its schools and that he is currently being home-schooled at his parents’ request.  Respondent also argues that the petition fails to state a claim upon which relief may be granted. 

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Respondent asserts that the petition served upon it was not verified.  However, the petition submitted to my Office of Counsel contains the required verification.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the New York State Education Department for filing includes a proper verification (Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095; Appeal of Johnson 46 id. 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Golden, 43 id. 20, Decision No. 14,904).  Accordingly, I decline to dismiss the petition for lack of proper verification.

Nevertheless, the appeal must be dismissed as premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Petitioners have not alleged that they have requested B.L.’s admission to respondent’s schools and been denied; respondent admits that B.L. resides with his parents at an address within respondent’s school district.  Therefore, petitioners present no justiciable controversy but, rather, seek an advisory opinion and the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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