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Decision No. 16,428

Appeal of HIRANAND FNU, on behalf of his children SUMAIR, SAHIL and AREESHA, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 16,428

(October 31, 2012)

Kakkar & Associates, attorneys for petitioner, Balram Kakkar, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that his children are not district residents.  The appeal must be dismissed. 

Petitioner seeks to overturn respondent’s September 10, 2012 residency determination and requests interim relief.

Respondent argues, interalia, that the appeal must be dismissed for lack of proper service and mootness.  Respondent further maintains that its determination was appropriate.

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).

Petitioner’s affidavit of service indicates that the petition was served on the district’s offices at 200 Division Avenue in Hicksville, New York.  However, it does not identify the individual on which the petition was served.  In her affidavit in opposition to petitioner’s request for a stay order and to the petition, the district clerk states that the petition was not served on her. The district clerk further avers that she was informed that the petition was served on Ann Fretto, a clerical staff member in the office of the assistant superintendent for personnel.  According to the district clerk’s affidavit, Ms. Fretto has not been designated by respondent to accept service on its behalf.

Where, as here, there is no proof that an individual has been authorized to accept service on behalf of  respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of DeMarco, 48 id. 252, Decision No. 15,850; Appeal of Baker, 47 id., 280, Decision No. 15,696).

In addition, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). 

According to the record, petitioner attempted to enroll his children in the district’s schools based on their alleged residence on Heitz Place in Hicksville, New York.  Respondent’s determination that petitioner and his children were not district residents was based on its finding that they did not reside there.  In the petition, petitioner alleges that, subsequent to respondent’s determination, his family moved to an apartment on Broadway in Hicksville, New York.[1]  Thus, the appeal has been rendered moot by petitioner’s admission that he and his family no longer reside on Heitz Place. 

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner has the right to reapply for admission to respondent’s schools on his children’s behalf at any time, particularly if his living situation has changed or does in fact change, and to submit any documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y).   

In light of this disposition, I need not address petitioner’s request for interim relief or the parties’ remaining contentions (see 8 NYCRR §276.9).

THE APPEAL IS DISMISSED.

END OF FILE.

[1] It should be noted that the record indicates that petitioner did not reapply for his children’s admission to the district’s schools based on this alleged change in living situation.  Further, respondent contends that none of the documentation attached to the petition has been submitted to it for its consideration.