Appeal of N.F.-H., on behalf of her daughter S.H., from action of the Board of Education of the New Paltz Central School District regarding immunization.

Decision No. 17,933

(October 21, 2020)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Beth L. Harris, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals from a determination of the Board of Education of the New Paltz Central School District (“respondent”) regarding her request for a medical exemption from the immunization requirements of Public Health Law (“PHL”) §2164 for her child, S.H. (“the student”).  The appeal must be dismissed.

The student was enrolled in respondent’s high school for the 2019-2020 school year.  By form dated September 16, 2019, petitioner sought a medical exemption from the immunization requirements of PHL §2164.  Specifically, petitioner sought an exemption “delaying” the student’s receipt of the required immunizations for three months.  Respondent denied this request in a letter dated September 20, 2019.  This appeal ensued.  By letter dated November 1, 2019, the Commissioner declined to render a decision on petitioner’s request for interim relief permitting the student to continue attending respondent’s schools pending a decision on the merits, as respondent had indicated that it would permit the student to attend its schools through November 15, 2019.[1]

Petitioner seeks a determination that the student is “medically exempt for a temporary deferment of vaccinations until November 15, 2019.”  Petitioner further requests that future “administration of vaccines” be “spaced out at two[-]week intervals” and, if the student’s “medication interferes with the administration of [such] vaccines,” that they be deferred “until further notice from [the student’s] physician.”

Respondent argues that the appeal must be dismissed, inter alia, for improper service.  On the merits, respondent argues that its decision to exclude the student from school as of November 18, 2019 was not arbitrary and capricious or otherwise unlawful.

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).

The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; see e.g. Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Gaynor, Sr., 51 id., Decision No. 16,293; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  A petition that does not contain the language required by §275.11 is fatally defective and does not secure jurisdiction over the intended respondent (see Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

Here, petitioner originally submitted a copy of the petition with an affidavit of service reflecting service on respondent’s district clerk on October 11, 2019.  In a letter dated October 21, 2019, my Office of Counsel returned this copy of the petition to petitioner because it lacked the notice required by 8 NYCRR §§275.11 and 276.1.  In this letter, my Office of Counsel indicated that, if petitioner “served and filed” a corrected petition within two weeks of the date of the letter, the appeal would be deemed, for the purposes of the 30-day time limitation, to have been initiated on the day that a copy of the original petition was personally served upon respondent – which, as noted above, was October 11, 2019.  The letter further indicated that respondent’s time to answer the petition would “commence with the service of the corrected petition.”

While petitioner complied with this directive insofar as she filed a copy of the corrected petition containing the required notice with my Office of Counsel, she did not complete an updated affidavit of service indicating that she served a copy of the corrected petition on respondent.  Instead, petitioner merely submitted the original affidavit of service reflecting service of the original petition on October 11, 2019.  Respondent indicates that it was never served with a copy of the corrected petition, including the notice of petition, and petitioner has not submitted a reply or other evidence to rebut this contention.  Therefore, because petitioner has failed to establish that she served the corrected petition upon respondent with the required notice, she has not obtained jurisdiction over respondent and the appeal must be dismissed for lack of personal service (see Appeal of A.V. and N.V., 56 Ed Dept Rep, Decision No. 16,928; see also Appeal of Rodriguez, 56 id., Decision No. 16,971).

Even if the appeal were not subject to dismissal on procedural grounds, it would be dismissed.  Petitioner’s principal request for relief – that the student be allowed to attend school through November 15, 2019 pursuant to “a temporary deferment of vaccinations” – 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner’s request that the student be permitted to attend school through November 15, 2019 has become moot due to the passage of time.  In any event, it appears from the record that respondent permitted the student to attend school through November 15, 2019.  Therefore, petitioner received the relief that she requested and her request in this regard is moot.

Petitioner’s remaining requests for relief must be dismissed as not properly before me.  Petitioner appears to seek prospective medical exemptions deferring future immunizations contingent upon anticipated events that had not yet occurred at the time she filed the petition.  Although respondent submitted a letter with its answer dated November 14, 2019 in which it denied petitioner’s request for an “ongoing medical exemption and/or revised vaccination schedule after November 15, 2019,” this letter was issued after petitioner served the instant petition.[2]  Petitioner did not submit a reply in this appeal or otherwise seek to respond to the November 14, 2019, determination; nor did she commence a new appeal concerning this determination.  Accordingly, even assuming that this letter was properly part of the record before me on appeal, there is an inadequate record upon which to base my review and this claim must be dismissed (see generally Appeal of Sidmore, 58 Ed Dept Rep, Decision No. 17,463; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).

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

THE APPEAL IS DISMISSED.

END OF FILE