Appeal of KENNETH POE, on behalf of his child, from action of the Board of Education of the Indian River Central School District and Section III of the New York State Public High School Athletic Association regarding interscholastic athletics.

Decision No. 18,227

(January 17, 2023)

Tully Rinckey PLLC, attorneys for petitioner, Amanda L. Smith, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent Indian River Central School District, Thomas F. Barrett, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent Section III, Daniel J. Pautz, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of Section III of the New York State Public High School Athletic Association (“Section III”) that his child (the “student”) is ineligible to participate in interscholastic wrestling for the 2021-2022 school year.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Section III is a subdivision of the New York State Public High School Athletic Association, a voluntary association of public and nonpublic schools organized to provide a central association through which students may compete in interscholastic athletics.  On November 8, 2021, the Indian River Central School District’s high school athletic director applied on behalf of the student to Section III seeking a waiver to participate in interscholastic wrestling during the 2021-2022 season.[1]  Section III denied the request and this appeal ensued.  Petitioner’s request for interim relief was denied on December 16, 2021.

Petitioner argues that the student should have been deemed eligible to participate in wrestling during the 2021-2022 school year.

Respondents argue that the petition must be dismissed because it is not verified in accordance with Commissioner’s regulations.  Section III also contends that its decision was reasonable.

The appeal must be dismissed for lack of proper verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  A petition “shall be verified by the oath of at least one of the petitioners” (8 NYCRR 275.5; Appeal of Booker, 40 Ed Dep Rep 447, Decision No. 14,523).  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, the verification is signed by petitioner’s counsel.  Petitioner’s counsel is not a petitioner in this appeal; therefore, her verification is improper, and the appeal must be dismissed (e.g., Appeal of L.S. and M.R., 61 Ed Dept Rep, Decision No. 18,077; Appeal of T.B., 60 id., Decision No. 17,969; Appeal of Waronker, 59 id., Decision No. 17,790).

Petitioner submits a “supplemental [p]etition” with a verification signed by petitioner in an attempt to comply with the Commissioner’s regulations.  I decline to accept petitioner’s additional submission.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  Moreover, even if I were to accept the supplemental petition and verification, petitioner did not serve respondents with these documents within 30 days of Section III’s determination (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).

In any event, the dispute is moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Petitioner’s request for relief concerns the student’s eligibility to participate in interscholastic wrestling during the 2021-2022 wrestling season.  Petitioner’s request for interim relief was denied and the 2021-2022 wrestling season has ended.  Consequently, the appeal is academic and is dismissed as moot (Appeal of Bosket, 56 Ed Dept Rep, Decision No. 17,106; Appeal of N.M., Sr., 55 id., Decision No. 16,846).

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

THE APPEAL IS DISMISSED.

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