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Decision No. 16,185

Appeal of Juan Manuel Hoggins Maldonado, on behalf of his brother JUAN JOSE HOGGINS CALCANO, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,185

(January 4, 2011)

Keane & Beane, P.C., attorneys for respondent, Ralph C.   DeMarco, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that his brother, Juan Jose, is not a district resident.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district.  Prior to his move to White Plains in September 2010, Juan Jose resided with his mother in the Dominican Republic.  The record indicates that Juan Jose has infrequent contact with his father, who frequently travels between Puerto Rico and the Dominican Republic.  According to petitioner, Juan Jose resides with him in White Plains because his father is not involved in his care and his mother lives in a “difficult situation” and is unable to adequately support him.

In September 2010, petitioner attempted to enroll Juan Jose in the district’s schools by submitting a care, custody and control application.  By letter dated October 8, 2010, respondent informed petitioner that Juan Jose was not a district resident and that he would not be permitted to attend the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 7, 2010.

Petitioner asserts that Juan Jose’s parents have transferred custody of Juan Jose to petitioner and that he is therefore a resident of respondent’s district.

Respondent argues that petitioner has failed to demonstrate a complete and total transfer of custody and control of Juan Jose from his parents to petitioner.  Respondent also asserts that the appeal must be dismissed as untimely, for failure to serve a notice of petition and for failure to state a claim upon which relief may be granted.

The appeal must be dismissed as untimely.[1]  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  The record indicates that respondent’s determination in this matter was made on October 8, 2010.  However, there is no evidence in the record to indicate when petitioner actually received the determination.  As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be October 15, 2010.  Although petitioner attempted to commence an appeal on or about November 1, 2010, that petition was rejected by my Office of Counsel for procedural defects, including lack of personal service (see 8 NYCRR §275.8).  While it appears that petitioner attempted to correct this deficiency, he did not personally serve respondent with a petition until November 23, 2010, almost 40 days after he received respondent’s determination.  Accordingly, since there is no evidence in the record that the first petition was ever personally served on respondent and petitioner offers no excuse for the delay, the appeal must be dismissed as untimely (seeAppeal of Batchateu, 49 Ed Dept Rep 96, Decision No. 15,968; Appeal of Davila, 41 id. 419, Decision No. 14,732).

Moreover, as respondent notes, the purported notice of petition served by petitioner is defective and does not comply with 8 NYCRR §275.11(a).  The “notice” served by petitioner contains only the caption of this appeal, and contains none of the language required by §275.11(a), which advises a potential respondent of the obligation to answer the petition in accordance with the Commissioner’s regulations and of the consequences of failing to answer.  A notice of petition which contains none of the required language is fatally defective, and does not secure jurisdiction over the intended respondent.  It is the notice of petition that alerts a party to the fact that he or she is required to appear in the appeal, and to answer the objections contained in the petition (8 NYCRR §275.11; Appeal of Khalid, 40 Ed Dept Rep 621, Decision No. 14,570).

In addition, petitioner asserts that Juan Jose’s parents “have surrendered parental control” over him pursuant to a “paper ... signed by both ... parents....”  While the petition filed with my Office of Counsel contains a copy of the document to which petitioner refers, written in Spanish, respondent contends that petitioner failed to serve such document on the district and that no such document exists in its files.  Section 275.8(a) of the Commissioner’s regulations specifically states, “A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers ... shall be personally served upon each named respondent....”  The failure to serve this document on respondent denied it a meaningful opportunity to respond to the contents contained therein and present a defense in this appeal (seeAppeal of Koehler, 46 Ed Dept Rep 425, Decision No. 15,553; Appeal of D.S. and D.S., 45 id. 289, Decision No. 15,327).

While the petition must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission to the district on Juan Jose’s behalf, and to present such document for respondent’s consideration.  As noted in respondent’s verified answer, it is the district’s “routine practice” to “accept all documentation supplied in connection with an application for admission to the [district’s] schools.”

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] I note that, pursuant to 8 NYCRR §276.9, the Commissioner “may, in his/her discretion, and at any stage of the proceedings, dismiss an appeal if it appears to the commissioner’s satisfaction that the appeal is untimely....”