Appeal of LINDA SIMONETTI, on behalf of her child, from action of the Board of Education of the Eastchester Union Free School District regarding transportation.

Decision No. 18,301

(July 17, 2023)

         Keane & Beane, P.C., attorneys for respondent, Susan E. Fine, Esq., of counsel

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

On April 4, 2022, petitioner submitted a request for transportation to a nonpublic school.  The following day, respondent’s supervisor of transportation denied the request as it was submitted after the April 1 deadline and would impose additional costs on the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 25, 2022.

Petitioner contends that it is in the student’s “best interest” to attend the private high school in which she is enrolled “for her educational needs and continued well-being.”  She seeks a determination that her child is entitled to transportation to the nonpublic school for the 2022-23 school year.

Respondent argues that the appeal must be dismissed as untimely.  On the merits, respondent argues that it reasonably denied the request as it was late and would impose additional costs.

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).  Petitioner did not commence the instant appeal until August 8, over four months after her request was denied on April 5, 2022.[1]  Petitioner asserts that her delay in filing the appeal should be excused because she was “going back and forth with multiple” district employees for several months since April, met with district employees for a “Special Education Transportation meeting in late May,” and experienced “covid sicknesses/quarantines” in her family in July.

These explanations are unpersuasive.  First, petitioner’s subsequent communications with district officials constituted requests for reconsideration that did not extend or toll the 30-day time limitation in which to commence an appeal (e.g., Appeal of D.C., 62 Ed Dept Rep, Decision No. 18,252; Appeal of Cole, 57 id., Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Second, petitioner does not explain how the special education transportation meeting justified her delay.[2]  Finally, petitioner has not explained how the diagnoses of certain members of her family with COVID-19 prevented her from commencing this appeal (see Appeal of L.F. and S.W., 62 Ed Dept Rep, Decision No. 18,274; Appeal of V.G. and J.G., 62 id., Decision No. 18,148).  Thus, the appeal must be dismissed as untimely as these reasons do not constitute good cause to excuse petitioner’s delay.

For the benefit of the parties, I note that the appeal would have been dismissed on the merits.  It is undisputed that petitioner’s request was submitted after the April 1 deadline.  Petitioner’s justification—that she decided to enroll the student in a nonpublic school—is not a reasonable explanation for the late submission of a transportation request (Appeal of Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Additionally, petitioner’s assertion that she was unaware of the April 1 transportation deadline is also without merit as “[a] board of education need not accept ignorance of the April 1 deadline as a reasonable excuse for failure to file a timely transportation request” (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; see also Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881, Appeal of Ghaffar, 46 id. 332; Decision No. 15,524).

Moreover, respondent’s supervisor of transportation asserts that transporting the student would present an additional cost as the district pays for such transportation on a per student basis.  Petitioner did not submit a reply or otherwise respond to this contention.  As such, she failed to meet her burden of proof.

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

THE APPEAL IS DISMISSED.

END OF FILE