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Decision No. 16,837

Appeal of JONATHAN and RANDI RETKINSKI, on behalf of their daughter RACHEL, JOSH and ILANA MERL, on behalf of their daughter RACHEL, and JOSHUA and RACHEL MEISNER, on behalf of their daughter CHANA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,837

(October 26, 2015)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Marilyn Richter, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) to deny their request for transportation for their children for the 2013-2014 school year.  The appeal must be dismissed. 

Petitioners are residents of respondent’s district whose children attend Prospect Park Yeshiva Elementary School (“school”), a private school in Brooklyn, New York.  In August 2013, petitioners applied for transportation variances based on an allegedly hazardous intersection along their children’s route to their assigned bus stop.  By letters dated September 23, 2013, respondent denied petitioners’ variance requests for the 2013-2014 school year.  The letters explained that a site visit had been completed and no hazards were found on the children’s route to school or to public transportation.[1]  This appeal ensued.

Petitioners allege that their variance requests should have been granted because hazardous conditions exist along their children’s route to their assigned bus stop.  Petitioners request that respondent move the existing yellow school bus stop or add a new yellow school bus stop for their children.

Respondent contends that this appeal must be dismissed as untimely and for improper verification.  Respondent also contends that the Meisner petitioners lack standing to maintain the appeal.  Additionally, respondent argues that its determination was not arbitrary and capricious and was in all respects proper.

I must first address several procedural matters.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Although the Meisner petitioners have purportedly brought this appeal on behalf of their daughter, the petition is devoid of any allegation establishing injury to her.  According to respondent’s transportation policy set forth in the regulations of the New York City Chancellor (“Chancellor’s regulations”), all students in grades three through six who reside one mile or more from their school are eligible for free transportation, either through school bus service, such as yellow school bus service, or a full-fare MetroCard for public transportation.  Students in grades three through six who reside more than one half mile and less than one mile from school are eligible for half-fare surface transportation in the form of a half-fare MetroCard.  The record indicates that the Meisner petitioners and their daughter live .958 miles from the school and therefore, pursuant to Chancellor’s regulations, their daughter is ineligible for yellow school bus service.  Therefore, the Meisner petitioners lack standing to challenge a decision regarding the location of a yellow school bus stop or a hazardous variance relative to a yellow school bus stop on behalf of their daughter.  

Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Here, the petition filed with my Office of Counsel is properly verified and the appeal will not be dismissed on that ground (see e.g., Appeal of Soler, 51 Ed Dept Rep, Decision No. 16,284).    

However, 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).  Petitioners sought transportation variances for their children for the 2013-2014 school year and the record indicates that variances, if granted by respondent, expire at the end of each school year.  Here, the school year has concluded and, consequently, the appeal is moot.

The appeal must also be dismissed as 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).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’s final determination in this matter was issued by letters dated September 23, 2013.  There is nothing in the record indicating when petitioners actually received the determination.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be September 28, 2013.  Petitioners thus had to commence their appeal on or before October 28, 2013. 

The record reflects that on October 22, 2013, my Office of Counsel received and returned petitioners’ petition for lack of verification and failure to include an affidavit of personal service in accordance with Commissioner’s regulations.  Petitioners thereafter personally served a verified petition on respondent on October 29, 2013.  Since the appeal was not properly commenced until more than 30 days after petitioners’ receipt of respondent’s final transportation determination and petitioners offer no excuse for the delay, the appeal must be dismissed as untimely.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] The record indicates that the Meisner petitioners reside less than one mile from the school.  Respondent’s September 23, 2013 determination letter with respect to their daughter, therefore, also stated that she was “ineligible for any full fare transportation by grade and distance.”