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Decision No. 16,248

Appeal of MISA HYLTON, on behalf of her cousin MAYA NAHREE STEVENS, from action of the Board of Education of the Harrison Central School District regarding residency.

Decision No. 16,248

(June 8, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Carolyn J. Przybylo, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Harrison Central School District (“respondent”) that her cousin Maya is not a district resident.  The appeal must be dismissed.

Petitioner asserts that Maya has resided with her since April of 2010.  Petitioner attempted to register Maya in respondent’s schools on September 15, 2010.  By letter dated September 17, 2010, respondent denied petitioner’s request.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 12, 2010. 

Petitioner asserts that she is Maya’s guardian and provides support for her and that Maya is therefore entitled to attend school in respondent’s district. 

Respondent raises a number of procedural defenses including the manner of service and timeliness.  Respondent also contends that petitioner has failed to demonstrate a clear legal right to the relief requested, establish the facts upon which she seeks relief and meet her burden of proof.  Respondent maintains that Maya is not entitled to attend its schools because petitioner has not demonstrated guardianship over Maya and Maya’s father has not relinquished total custody and control over Maya.

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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  In the instant matter, respondent provides the affidavit of the district clerk, stating that, on October 29, 2010, she was served with only an affidavit of personal service.  Respondent claims that it was never personally served with a copy of the petition or any other pleadings or documents in this matter.  Petitioner submits no reply or other evidence to the contrary.  Therefore, the appeal must be dismissed for improper service.

The appeal is also untimely.  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).  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).  Respondent argues that the appeal is untimely because it was commenced more than 30 days after its September 17, 2010 determination.  While the record indicates that respondent notified petitioner of its determination by letter dated September 17, 2010, there is no evidence in the record to indicate when petitioner actually received the determination.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be September 23, 2010.  Petitioner thus had to commence her appeal on or before October 23, 2010, a Saturday.  If the last day for service of a petition falls on a Saturday, service may be made on the following Monday (8 NYCRR §275.8[a]), which, in this case, was October 25, 2010.  Although petitioner attempted to commence an appeal on or about October 19, 2010, that petition was rejected by my Office of Counsel because, among other things, it did not include an affidavit of service or a notice of petition as required by Commissioner’s regulations.  While it appears that petitioner attempted to correct these deficiencies by serving an affidavit of service on respondent on October 29, 2010, even if petitioner had properly served the petition on that date such service would have been untimely.  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 Maldonado, 50 Ed Dept Rep ___, Decision No. 16,185).  

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Maya’s behalf and to present any new information or documentation for respondent’s consideration (seeAppeal of Clancy, 50 Ed Dept Rep ____, Decision No. 16,150).

THE APPEAL IS DISMISSED.

END OF FILE.