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Decision No. 13,838

Appeal of WILLIAM J. HENDRICK, SR., on behalf of his sons, WILLIAM J. HENDRICK, JR. and JOHN D. HENDRICK, III, from action of the Board of Education of the Lynbrook Union Free School District and William Metkiff regarding transportation.

Decision No. 13,838

(October 3, 1997)

Ehrlich, Frazer and Feldman, Esqs., attorneys for respondent,

Beth Ann Stemmler and Laura A. Ferrugiari, Esqs., of

counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lynbrook Union Free School District ("respondent") to deny his sons transportation services to a nonpublic school. The appeal must be sustained.

Petitioner is the parent of two sons, William and John. William attended the Kellenberg Memorial High School, a nonpublic school, during the 1996-97 school year. For the 1997-98 school year, petitioner’s wife mailed a transportation request on March 29, 1997 for transportation for both William and John to the nonpublic school. However, respondent alleges it did not receive the request until April 4, 1997. The envelope was properly addressed and stamped, but respondent claims it was postmarked after the statutory deadline of April 1st. Respondent's district clerk recognized petitioner’s name and phoned petitioner’s household on April 4, 1997 to inform them that the transportation requests were being denied on the grounds that they were submitted after the statutory deadline.

On April 7, 1997, respondent's assistant superintendent for business sent a letter to petitioner indicating that the transportation requests were denied. On that same date, petitioner telephoned an assistant superintendent to discuss the matter. On April 12, 1997, petitioner received a second letter from the assistant superintendent for business informing petitioner that respondent had reviewed the matter and denied the transportation requests on the grounds that they were late. On April 15, 1997, petitioner filed a request under the Freedom of Information Law for copies of the transportation requests and the mailing envelope for the requests. By letter dated April 17, 1997, petitioner was informed that the appropriate data was being assembled and that a response would be made within ten working days. Due to spring recess, petitioner was ultimately provided with copies of the requested material on April 28, 1997.

On or about April 28, 1997, respondent’s assistant superintendent for business received a letter from the Lynbrook postmaster indicating that he had reviewed the mailing envelope and opined that the illegible postmark on petitioner’s envelope was actually dated April 1, 1997. Respondent’s district clerk reviewed the sample envelope provided by the postmaster and determined that the postmark was actually April 2nd or 3rd , and not April 1st, and again determined that petitioner’s transportation requests should be denied. Petitioner commenced this appeal on May 7, 1997. On August 25, 1997, petitioner requested interim relief pending a determination on the merits of his appeal which was granted on September 8, 1997.

Petitioner alleges that the transportation requests were timely made, and that they were postmarked on April 1, 1997. Respondent contends that the requests were untimely, and raises a number of defenses, including that petitioner has failed to meet his burden of proving that the requests were mailed on or before April 1, 1997, that petitioner has failed to establish that the requests were properly addressed, stamped and submitted to the district by April 1st, that the unsworn statement of the postmaster was not credible, that respondent was not on notice of petitioner’s transportation needs with regard to his elder son merely because the child had attended the same nonpublic school last year, that petitioner offers no reasonable explanation for the delay in filing the transportation request and that an additional expense would be incurred by the district in providing transportation to petitioner’s children and that the Commissioner has no jurisdiction over petitioner’s claims regarding access to student records. Respondent also objects to new material included in petitioner’s reply and alleges that it is untimely.

Before reaching the merits of this appeal, I will address respondent’s objection to petitioner’s reply. Respondent contends that petitioner’s reply contains new material that was not raised in the original petition and may not be introduced in the reply. Specifically, respondent objects to the inclusion of a sworn copy of the letter submitted by the postmaster opining that the postmark on petitioner’s transportation request was most likely marked April 1st. The purpose of a reply is to respond to new material set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions, which should have been included in the petition (Appeal of Alexandreena D., 30 Ed Dept Rep 462; Appeal of Pronin, 27 id. 203). Respondent also objects to the timeliness of the reply. Under 8 NYCRR 275.14, a reply must be served within 10 days of the answer. Respondent submitted its answer in this matter on May 27, 1997 and petitioner submitted its reply on July 14, 1997, more than ten days after submission of the answer. Accordingly, the reply will not be considered, and consequently, respondent’s sur-reply will not be considered.

Turning to the merits, Education Law "3635(2) provides, in pertinent part:

A parent or guardian of a child residing in any school district or any representative authorized by such parent or guardian, who desires for a child during the next school year any transportation authorized or directed by this chapter shall submit a written request therefore to the school trustees or board of education of such district not later than the first day of April preceding the next school year….

The purpose of this deadline is to enable school districts to budget funds and make the arrangements necessary to provide transportation in a reasonable and economical manner (Appeal of Frasier, 34 Ed Dept Rep 404; Appeal of McNair, 33 id. 418).

The issue in this appeal is whether petitioner submitted a timely transportation request. Respondent raises a number of defenses that are not applicable here, one of which contends that there is no evidence that the request was properly addressed, stamped and mailed. Since the envelope produced as petitioner’s exhibit F was clearly addressed to the district, had a stamp affixed to it, and was received by the district, it was obviously properly addressed, stamped and mailed. The only relevant issue is whether the transportation request was mailed by the April 1st deadline.

The record contains an affidavit from petitioner’s wife that she completed the transportation requests on March 26, 1997 and mailed them on Saturday, March 29, 1997 at approximately 4pm at a mailbox on her way home from shopping for Easter candy. The record also contains a letter from the Lynbrook postmaster opining that the illegible stamp on the envelope in question was probably date stamped on April 1st, and not April 2nd or 3rd given the vagaries of his postal machinery. The fact that respondent did not receive the requests until April 4, 1997, is unfortunate. However, I find petitioner’s assertions credible that the requests were mailed prior to the statutory deadline. Since prior decisions of the Commissioner of Education have acknowledged that mailing is effective service even though the papers are not actually received (Matter of Kahane, 9 Ed Dept Rep 68; Matter of Kaye, 9 id. 71) and I find petitioner's statement that she mailed the requests on March 29, 1997 credible (Shapiro v. McAndrews, 84 Misc2d 1078), the fact that they arrived after April 1st is not relevant. It appears that the arrival of the requests was most likely delayed due to postal error. On the record before me, I conclude that petitioner’s transportation request was timely made, and that respondent acted arbitrarily in its determination in interpreting the postmark and denying petitioner transportation on that basis. Therefore, I find that petitioner’s sons are entitled to transportation for the 1997-98 school year.

Respondent correctly notes that petitioner’s claims pertaining to access to records he sought pertinent to this appeal are not properly before me. The appropriate forum for addressing Freedom of Information Law (FOIL) violations is in the Supreme Court of the State of New York, not a "310 appeal to the Commissioner of Education (Appeal of Lindauer and McKee, 34 Ed Dept Rep 596).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide transportation to William J. Hendrick Jr. and John D. Hendrick, III to the Kellenberg Memorial High School for the 1997-98 school year.

END OF FILE