Appeal of JERRY RUTHERFORD and ROBERT A. MCCOY from action of the Board of Education of the Town of Webb Union Free School District regarding the retention of unexpended surplus funds.

Decision No. 18,444

(July 15, 2024)

Ferrara Fiorenza PC, attorneys for respondent, Cameron B. Daniels, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal decisions of the Board of Education of the Town of Webb Union Free School District (“respondent”) related to an alleged retention of unexpended surplus funds, which petitioners claim violates Real Property Tax Law § 1318.  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).

Here, petitioners attempted to serve the petition on respondent by certified mail, which the Commissioner has long held to be insufficient (Appeal of C.D. and A.D., 58 Ed Dept Rep, Decision No. 17,500; Appeal of C.D., 39 id. 96, Decision No. 14,184).  Petitioners have not provided an affidavit or any evidence of service on an individual so authorized.[1]  Accordingly, the appeal must be dismissed for improper service (Appeal of the Board of Educ. of the City Sch. Dist. of the City of Buffalo, 62 Ed Dept Rep, Decision No. 18,268; Application of Student with a Disability, 57 id., Decision No. 17,391).

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

THE APPEAL IS DISMISSED.

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