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Decision No. 15,440

Appeal of STUDENTS WITH A DISABILITY, by their parent, from action of the Board of Education of the City School District of the City of Yonkers regarding student discipline.

 

Decision No. 15,440

 

(August 7, 2006)

 

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Ana I. Gonzalez, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals determinations of the Board of Education of the City School District of the City of Yonkers (“respondent”) suspending her sons from school.  The appeal must be dismissed.

Petitioner’s sons are special education students who attended high school in respondent’s district during the 2005-2006 school year.  On December 8, 2005, they were suspended for five days for fighting.  On January 23, 2006, a superintendent’s hearing was held for each of petitioner’s sons, and the hearing officer upheld the charges and the suspensions.  This appeal ensued.  Petitioner requests that the five-day suspensions be expunged from each of her sons’ records.

Respondent contends that it was not served with the petition in accordance with �275.8(a) of the Commissioner’s regulations and that petitioner failed to provide my Office of Counsel with a proper affidavit of service.  Respondent also alleges that petitioner’s sons admitted the charges.

Initially, I must address petitioner’s belated attempt to reply to respondent’s jurisdictional defense.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.).  Respondent served its answer by mail on March 28, 2006, and petitioner served her reply 36 days later on May 3, 2006.  Accordingly, I find petitioner’s reply to be untimely and I have not considered it.

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]) In this case, petitioner submitted an affidavit of service stating that the “district clerk” was served with the petition.  The affidavit does not indicate the name of the person alleged to have been served.  Moreover, the affidavit of service is stamped “RECEIVED” by the Yonkers Public Schools Transportation Department, which is not authorized to accept service on behalf of respondent.

Nor is the affidavit of service notarized.  Section 275.9 of the Commissioner’s regulations requires that an affidavit of service be in the form specified in the regulations, and the form requires the person making the affidavit to have his or her signature notarized by a notary public or other person authorized to administer oaths within New York.  The lack of proper notarization renders the affidavit invalid (seeAppeal of Grant, 42 Ed Dept Rep 184, Decision No. 14,816).  Therefore, I must conclude that petitioner failed to prove proper service on respondent of the petition on respondent.  As a result, jurisdiction over the respondent is lacking, and the appeal must be dismissed.

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

 

THE APPEAL IS DISMISSED.

END OF FILE