Appeal of M.C., on behalf of his child, from action of the Board of Education of the Massapequa Union Free School District regarding transportation.

Decision No. 18,087

(February 14, 2022)

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Massapequa Union Free School District (“respondent”) denying his child (“the student”) transportation to a nonpublic school.  The appeal must be dismissed.

On April 9, 2021, petitioner, a resident of respondent’s district, made a request by email that respondent provide the student with transportation to Lawrence Woodmere Academy, a nonpublic school, for the 2021-2022 school year.  By email dated April 12, 2021, respondent’s transportation office supervisor denied petitioner’s request.  The transportation supervisor explained that petitioner’s request was made after the April 1 deadline and asserted that providing transportation would cause respondent to incur additional costs.  The supervisor also stated that transportation could not be provided because Lawrence Woodmere Academy was located “over [the] 15-mile distance requirement.”  This appeal ensued.

Petitioner argues that respondent erred in denying his request and should provide transportation for the student from either Massapequa High School or a designated central pick-up location.

Respondent argues that the appeal must be dismissed as untimely and for failure to properly serve the petition.  Respondent also argues that it properly denied petitioner’s request for transportation pursuant to Education Law § 3635. 

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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, the transportation supervisor denied petitioner’s request for transportation on April 12, 2021.  Petitioner did not attempt to initiate the instant appeal until June 1, 2021—50 days later—when he served several documents[1] on respondent.  Moreover, petitioner did not deliver a verified petition to respondent until June 4, 2021 (8 NYCRR 275.8 [a]; Appeal of O.J., 60 Ed Dept Rep, Decision No. 17,900).  Petitioner has not set forth good cause, or any cause, for the delay in serving the petition (8 NYCRR 275.16).  Therefore, the appeal must be dismissed as untimely (Appeal of B.P., 61 Ed Dept Rep, Decision No. 18,027; Appeal of Ruggiero, 59 id., Decision No. 17,837).

The appeal must also be dismissed for lack of proper 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).  

As indicated above, petitioner initially served the district clerk with an assortment of documents on June 1, 2021.  These papers did not include a verified petition, notice of petition, or affidavit of service.  Three days later, petitioner served a verified petition on a security monitor.  The security monitor does not hold one of the positions identified by the regulation and has not been designated by respondent to accept service.  Therefore, the appeal must also be dismissed for improper service (Appeal of Litton, 47 Ed Dept Rep 277, Decision No. 15,695; Appeal of Harmon, 43 id. 478, Decision No. 15,057).  

Even if the appeal was timely and properly served, it would be dismissed on the merits.  Petitioner did not make his request for transportation until after the April 1 deadline mandated by Education Law § 3635 (2) and failed to set forth any reason for the delay (see Appeal of Daly, 58 Ed Dept Rep, Decision No. 17,454; Appeal of Doe, 57 id., Decision No. 17,295).  Moreover, the parties agree that the distance from petitioner’s home to the nonpublic school is in excess of the 15-mile limit set by Education Law § 3635 (1) (a).[2]  Accordingly, even if petitioner’s request had been made prior to the April 1 deadline, respondent would not be required to provide transportation to the student (Education Law § 3635 (1) (b) (ii); Appeal of Poles, 55 Ed Dept Rep, Decision No. 16,800).

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

THE APPEAL IS DISMISSED.

END OF FILE