Appeal of J.M. and R.C., on behalf of their children E.P-M., J.P. and O.C., from action of the Board of Education of the Clarkstown Central School District regarding residency and transportation.

Decision No. 17,470

(August 1, 2018)

Jaspan Schlesinger LLP, attorneys for respondent, Joanna M. Caccavo, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that their children, E.P-M., J.P. and O.C. (“the students”), are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

The record indicates that, prior to the events described in this appeal, petitioners[1] and the students resided within respondent’s district (“in-district residence”) and the students attended respondent’s schools.  According to petitioners, in or about May 2017, they were evicted from their in-district residence and began living with friends and in motels outside the district.

Subsequently, respondent received information that petitioners and the students did not reside within the district.  Petitioners were asked to provide evidence of their residence within the district, but did not do so.

By letter dated March 12, 2018, respondent’s director of business services informed petitioners of her determination that they were not district residents and the students would be excluded from respondent’s schools effective March 21, 2018.  Specifically, the letter advised that district officials made “[m]ultiple attempts” to speak to petitioners regarding their residency, but that they were “uncooperative” and that the students made statements to district staff indicating that they did not reside in the district.  The letter also informed petitioners of their right to appeal “[t]his final determination of residency” pursuant to §310 of the Education Law.  This appeal ensued.

Petitioners contend that they and the students are homeless within the meaning of McKinney-Vento.

Respondent asserts that the appeal must be dismissed for lack of proper service.  Respondent maintains that petitioners and the students are not homeless within the meaning of McKinney-Vento.

Respondent asserts that the appeal must be dismissed for lack of proper 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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Respondent asserts that petitioners failed to personally serve an individual authorized to accept service on behalf of respondent in accordance with §275.8(a).  Petitioners submit an affidavit of service indicating that, on March 19, 2018, the petition was delivered to an individual whose name is illegible. Respondent submits an affidavit from Ellen Riccardi, Assistant to the Director of Business Services (“assistant”), indicating that, on March 19, 2018, a man came into the Registrar’s Office and told her that he was there to deliver papers on behalf of petitioners’ family, and that she accepted the papers that he delivered and made contemporaneous notes about their conversation. Respondent asserts that the assistant is not authorized to accept service on behalf of respondent.  However, the assistant does not indicate that she ever stated that she was not authorized to accept service, and in fact accepted service after being advised that an individual was there to “deliver papers.”  Moreover, the assistant questioned the individual as to whether he was related to petitioners, which would tend to give the impression that she was authorized to accept service.  Therefore, I decline to dismiss for lack of proper service on this basis (see Appeal of Eschmann, 55 Ed Dept Rep, Decision No. 16,853).

However, pleadings may be served by any person not a party to the appeal over the age of 18 (8 NYCRR §275.8[a]; Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659).  The affidavit of service submitted with the petition appears to indicate that petitioner R.C. served the notice and verified petition.  The affidavit from the assistant indicates that, on March 19, 2018, a man came into the Registrar’s Office and identified himself as “R.C.”[2]  The assistant indicates that she asked R.C. if he was a parent or relative of the family and he responded that he had no affiliation with them.  In their reply, petitioners assert that the petition was served by R.C.’s brother, R.C., whose name and appearance are similar to petitioner R.C.  I have reviewed the affidavit of service and do not find petitioners’ averments in this regard to be credible in view of the conflicting evidence.  I therefore find that petitioners have not rebutted the evidence provided by respondent.  Accordingly, on this record, the petition was not properly served and the appeal must be dismissed (see Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Hughes, 48 id. 299, Decision No. 15,865).

To the extent petitioners seek to appeal respondent’s March 12, 2018 residency determination, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In their appeal, petitioners indicate that they no longer reside within respondent’s district, thus rendering a determination as to their residence within the district moot.

Petitioners also claim for the first time in this appeal that the students are homeless students under McKinney-Vento because they lack a fixed, regular and adequate nighttime residence.  Because petitioners never raised the issue of homelessness to respondent prior to commencing this appeal, respondent has never made a determination on such claim and this appeal therefore seeks review only of respondent’s residency determination.[3]  Issues not raised before respondent and presented for its consideration and decision may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (Appeal of J.H., 52 Ed Dept Rep, Decision No. 16,376; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).

Although the appeal must be dismissed for the reasons set forth above, I note that petitioners retain the right to reapply for the students’ admission to respondent’s schools at any time, should their situation change, and to submit any documentary evidence for respondent’s consideration.

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

THE APPEAL IS DISMISSED.

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