Appeal of R.M., on behalf of her son A.M., from action of the Board of Education of the Lewiston-Porter School District regarding immunization.

Decision No. 17,214

(October 11, 2017)

Amanda R. Amendola, Esq., attorney for petitioner

Webster Szanyi, LLP, attorneys for respondent, Ryan G. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lewiston-Porter School District (“respondent”) that her son, A.M. (the “student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed. 

On February 8, 2017, petitioner submitted a request for her son’s exemption from the immunization requirements of PHL §2164 on religious grounds.  By letter dated May 3, 2017, respondent denied petitioner’s religious exemption request. This appeal ensued.  Petitioner’s request for interim relief was denied on July 14, 2017.

Petitioner challenges respondent’s denial of her request for a religious exemption, asserting that she has genuine and sincere religious beliefs that are contrary to immunization and seeks a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164. 

Respondent contends that petitioner failed to provide sufficient information to support a religious exemption and that petitioner's objections to immunizations are not based on genuine and sincerely-held religious beliefs.  Respondent also contends that the appeal should be dismissed as untimely, for lack of verification and improper service.

I must first address the procedural issues. 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

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 Goldin, 43 id. 20, Decision No. 14,904).  Accordingly, I decline to dismiss the petition for lack of proper verification.

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 May 3, 2017 determination.  While the record indicates that respondent notified petitioner of its determination by letter dated May 3, 2017, the record is unclear as to when petitioner actually received the notice.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be May 9, 2017.  Petitioner thus had to commence her appeal on or before June 8, 2017.  According to the affidavit of service, the verified petition was served on June 6, 2017.  Therefore, I decline to dismiss the appeal as untimely.

However, the appeal must be dismissed for failure to effectuate personal service.  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]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Petitioner’s affidavits of service indicate that the petition was served on “Julie Gajewski,” respondent’s building principal, and “Ryan Smith,” respondent’s legal counsel, on June 6, 2017.  A building principal and legal counsel are not individuals authorized by §275.8(a) of the Commissioner’s regulations upon whom service upon a school district may be properly effected.  Indeed, respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR §275.8[a]) and submits an affidavit stating that that Ms. Gajewski and Mr. Smith have not been designated nor authorized to accept service of process.  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).  Other than conclusory statements by her counsel, petitioner has produced no evidence establishing that proper service was effectuated.  Consequently, because service is defective and jurisdiction over respondent is lacking, the appeal must be dismissed (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).     

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for a religious exemption on the student’s behalf at any time and that respondent must evaluate any such application – including any evidence petitioner may submit – in accordance with the requirements of PHL §2164(9) (see Appeal of D.H., 52 Ed Dept Rep, Decision No. 16,425).

THE APPEAL IS DISMISSED.

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