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Decision No. 16,580

 

 Appeal of P.N., on behalf of his daughter E.N., from action of the Board of Education of the Eastchester Union Free School District regarding transportation.

Decision No. 16,580

(December 12, 2013)

Keane & Beane, P.C., attorneys for respondent, Stephanie L.Burns, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Eastchester Union Free School District (“respondent”) denying his daughter transportation to an on public school. The appeal must be dismissed.

Petitioner resides within respondent’s school district and his daughter attends a nonpublic school. On or before April 1, 2012, petitioner submitted a transportation request to respondent for transportation for his daughter to and from the Ursuline School (“Ursuline”) located in New Rochelle, New York. On June 7, 2012, petitioner withdrew his original request for transportation for his daughter to attend Ursuline and submitted a new transportation request to respondent to provide transportation for his daughter to and from the Covenant of the Sacred Heart (“CSH”) located in Manhattan, New York for the 2012-2013 school year. By letter dated, June 8, 2012, respondent denied petitioner’s transportation request. This appeal ensued.

Although petitioner admits that he submitted his application for transportation to CSH for the 2012-2013school year after the April 1 deadline and that no reasonable excuse for his delay exists, petitioner argues that the district would incur no additional cost to transport his daughter to CSH and therefore his request should be granted.

Respondent maintains that petitioner failed to submit the CSH transportation request prior to the April 1 statutory deadline and failed to provide a reasonable explanation for the delay. Respondent further asserts that petitioner’s request was properly denied as the district would incur additional costs if petitioner’s late transportation request were granted.

I will first address a few procedural matters. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR

§§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell,48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson,48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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). Since the 2012-2013 school year has ended, petitioner’s request for transportation during that school year is moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Education Law§3635(2) requires that an application for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested or, if the parents or guardian of a child did not reside in the district on April 1,within 30 days after establishing residency in the district. The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically(Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No.15,914; Appeal of Mendiolaza, 48 id. 346; Decision No.15,881). However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; Appeal of a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837). In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request(Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No.15,914; Appeal of a Student with a Disability, 48 id. 207,Decision No. 15,837). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No.15,914; Appeal of Mendiolaza, 48 id. 346; Decision No.15,881). In this case, although petitioner initially

timely requested transportation to Ursuline, he subsequently withdrew his request and submitted a new transportation request to CSH after the deadline for requesting transportation had expired because he decided to enroll his daughter in CSH for the 2012-2013 school year. A belated decision to enroll a student in a private school is not a reasonable explanation for the late submission of a transportation request (Appeal of Capeling, 46 Ed Dept Rep 400, Decision No. 15,545; Appeal of S.M., 44 id. 391,Decision No. 15,208). Based on the record, I do not find that petitioner has provided a reasonable excuse to approve an untimely transportation request. Moreover, petitioner admits that no reasonable excuse for his delay exists.

Even absent a reasonable explanation for the delay, alate transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No.15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524).However, where a late transportation request would result in additional cost, such transportation request may be denied. The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (Appeal of Lippolt, 48 Ed Dept Rep457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346,Decision No. 15,881).

According to the record, there would be no cost savings by removing petitioner’s daughter from the list of students being transported to Ursuline for the 2012-2013school year. Furthermore, respondent has effectively demonstrated that it would incur, at a minimum, $1,370.00in additional transportation costs for approximately 10monthly Metro North train passes to transport petitioner’s daughter to CSH if petitioner’s request was approved. Consequently, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.

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

THE APPEAL IS DISMISSED. END OF FILE