Appeal of the TOWN OF NEW WINDSOR from action of Robert J. Hanna, District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties, and the Board of Education of the Enlarged City School District of the City of Newburgh regarding formation of a new school district.

Decision No. 15,166

(January 31, 2005)

Duggan, Crotty & Dunn, P.C., attorneys for petitioner, Philip A. Crotty, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent Robert J. Hanna, Daniel Petigrow, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent Enlarged City School District of the City of Newburgh, David S. Shaw and Margo L. May, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the decision by Dr. Robert J. Hanna, District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties ("Hanna"), to deny petitioner�s request to form a new school district. The appeal must be dismissed.

Petitioner, the Town of New Windsor, is divided among four school districts. Part of the town lies within the Enlarged City School District of the City of Newburgh ("Newburgh ECSD"), and the remainder of the town lies in three other school districts, Valley Central School District, Cornwall Central School District, and Washingtonville Central School District.

On November 7, 2002, petitioner�s attorney sent a letter to respondent Hanna, asking him to consider forming a new school district for the town. Respondent denied petitioner�s request, and petitioner commenced an appeal pursuant to Education Law �310 (Appeal of the Town of New Windsor, 43 Ed Dept Rep 56, Decision No. 14,915), which was dismissed on August 1, 2003. The appeal was dismissed because petitioner failed to name and serve the Newburgh ECSD, a necessary party to the appeal. My decision did not suggest any further course of action to be followed by petitioner, nor did I issue any order requiring that the Newburgh ECSD be named as a respondent in any "next proceeding" or appeal, as petitioner now claims.

In December 2003, petitioner�s attorney prepared another letter addressed to both respondent Hanna and the district clerk of the Newburgh ECSD. The letter, dated December 10, 2003, contained this heading: "Re: Petition to form New Windsor School District out of Newburgh Enlarged City School District NYS Education Law, Section 1504.1." This letter again requested that respondent Hanna form a new school district by removing from the Newburgh ECSD that portion of its territory which lies within the Town of New Windsor, and creating a new school district to be known as the New Windsor Central School District or Union Free School District. Petitioner states that this letter was "served" on January 7 and 8, 2004.

By letter dated January 13, 2004, respondent Hanna again denied petitioner�s request. He cited petitioner�s ineligibility to act as a municipality as defined in Education Law �2218, and his own lack of authority under Education Law �1504(1) to "de-consolidate" an enlarged city school district that had been formed by order of the Commissioner of Education pursuant to Education Law �1526. (Respondent Newburgh ECSD did not respond to this letter, which did not make any request of it.)

This appeal was commenced by service of a notice of petition and petition on respondent Hanna on May 4, 2004, and on the district clerk of respondent Newburgh ECSD on May 10, 2004. The contentions of petitioner and respondent Hanna are essentially the same as those recited in Decision No. 14,915, but respondent Hanna also contends that this appeal is untimely. Petitioner again requests an order directing respondent Hanna to form a new school district pursuant to Education Law �1504(1).

The appeal must be dismissed as untimely. This appeal challenges a determination by respondent Hanna made on January 13, 2004, but was not commenced until almost four months later, in clear of violation of �275.16 of the Commissioner�s regulations. That provision allows me to excuse the failure to commence an appeal in a timely fashion, where good cause is shown, and the reasons for such failure are set forth in the petition. Here, no such reason is shown. Petitioner apparently believes, mistakenly, that by sending the December 10, 2003 letter to both respondents, it is somehow excused from the clear requirements of �275.16 that an appeal must be commenced within 30 days after the determination it challenges. To be timely, this appeal should have been commenced by service of the notice of petition and petition upon both respondent Hanna and necessary party respondent Newburgh ECSD no later than February 18, 2004 (allowing five days for mailing and receipt, assuming the January 13, 2004, decision was mailed to petitioner).

In view of this disposition, it is unnecessary to address any of petitioner �s remaining contentions, which I find without merit.

THE APPEAL IS DISMISSED.

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