Appeal of G.C., on behalf of her son G.C., from action of the New York City Department of Education[1] regarding transportation.

Decision No. 17,637

(May 7, 2019)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Joshua C. Wertheimer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny her son (“the student”) a medical variance for school bus transportation to and from his nonpublic school for the 2017-2018 school year.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner resided within respondent’s district.  According to the record, the student attended St. Gregory the Great Catholic Academy – a nonpublic school – during the 2017-2018 school year.

Respondent’s transportation policy is generally set forth in Chancellor’s regulation A-801.  Where a student is not otherwise eligible for school bus transportation, respondent’s Office of Pupil Transportation (“OPT”) considers requests for a medical variance to provide school bus transportation to students based upon a sufficient showing of medical need.  The record contains a standardized form, available on OPT’s website, which parents may complete and submit for OPT’s consideration.

On September 18, 2017, respondent received a medical variance request form from petitioner in which she requested, on behalf of the student, a medical variance so that he could receive bus transportation to his nonpublic school.   In a letter dated October 12, 2017, OPT’s Chief of Staff denied petitioner’s medical variance request.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 23, 2018.

Petitioner contends that respondent’s denial of her medical variance request was arbitrary and capricious.  Petitioner asserts that the student has asthma and that his rights “[a]ccording to the Individuals with Disabilities Education Act (IDEA) have been violated,” although she admits that the student “is not in Special Education.”  Petitioner seeks a determination that the student is entitled to bus transportation.

Respondent contends that the appeal must be dismissed for improper service and as untimely.  Respondent further contends that, to the extent the appeal alleges violations of the federal Individuals with Disabilities Education Act (“IDEA”), it must be dismissed for lack of jurisdiction.  On the merits, respondent contends that petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious.  Respondent further contends that petitioner has failed to prove that the student has a medical condition which necessitates granting her medical variance request for bus transportation.

The appeal must be dismissed for improper 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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner originally filed a notice of petition and petition which was received by my Office of Counsel on December 18, 2017.  My Office of Counsel returned petitioner’s papers as the petition did not include a completed affidavit of personal service as required by 8 NYCRR §§275.8 and 275.9.  Petitioner subsequently resubmitted the instant petition, along with a completed affidavit of service.

Initially, I find that service of the petition is defective because petitioner herself served the petition in contravention of §275.8 of the Commissioner’s regulations, which requires that a non-party over the age of 18 serve all pleadings (Appeal of A.F., 56 Ed Dept Rep, Decision No. 17,030; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  Moreover, it appears service was effectuated via U.S. mail, and service by U.S. mail does not constitute valid service of a petition pursuant to Education Law §§306 or 310 (see e.g. Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670; Applications of Balen, 40 id. 250, Decision No. 14,474; Appeal of K.R., 40 id. 189, Decision No. 14,457).  Finally, there is no indication on the face of the affidavit of service that service was effectuated upon an individual authorized to accept service on respondent’s behalf.  In the affidavit of service, petitioner indicates that she personally served the petition “by mail” upon an employee of my Office of Counsel.  Counsel for respondent asserts that it only learned of the petition when my Office of Counsel contacted him and provided him with a facsimile copy of the petition (see Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256).  Thus, for all of the above reasons, service is improper and the appeal must be dismissed.

The appeal must also be dismissed for failure to join respondent in this appeal.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  In addition to the deficiencies concerning service described above, the caption of both the notice of petition and petition name only “the Board of Education of the St. Gregory the Great Catholic Academy School District” as the sole respondent in the appeal.  Under these circumstances, respondent was not clearly named in the caption of the appeal (Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,205).  Accordingly, the appeal must be dismissed for failure to join a necessary party.

Even if petitioner had properly effectuated personal service of the petition and joined respondent, the appeal 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, respondent denied petitioner’s medical variance request for transportation on October 12, 2017.  Petitioner’s initial attempt to commence this appeal was not made until December 8, 2017, and the instant petition was not served until January 8, 2018 – both of which occurred more than 30 days after respondent’s determination.  Petitioner does not set forth good cause for the delay in the petition (see 8 NYCRR §275.16).  Accordingly, the appeal is untimely and must be dismissed.

Finally, to the extent that petitioner attempts to raise claims under the federal IDEA, the appeal must be dismissed for lack of subject matter jurisdiction.  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,911; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).

THE APPEAL IS DISMISSED.

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