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Decision No. 17,527

Appeal of A.B., on behalf of her daughter A.B., from action of the Board of Education of the New York City Department of Education regarding immunization.

Decision No. 17,527

(October 23, 2018)

Chesney & Nicholas LLP, attorneys for petitioner, Joyce Bigelow, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that her daughter, A.B. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

At all times relevant to this appeal, the student attended respondent’s district.  During the 2016-2017 school year, petitioner submitted a medical request for an exemption from the immunization requirements of PHL, dated October 6, 2016, on the student’s behalf.  In a letter dated December 1, 2016, respondent’s health services coordinator (“coordinator”) denied petitioner’s medical exemption request.  According to the record, petitioner thereafter provided additional “documentation” in support of her exemption request.  In a letter dated January 13, 2017, respondent’s director of the office of school health affirmed the coordinator’s denial of petitioner’s request.

On February 5, 2017, petitioner submitted a request for the student’s exemption from the immunization requirements of PHL §2164 on religious grounds.  By memorandum dated March 29, 2017, respondent’s coordinator denied petitioner’s request.  The memorandum provided information about how to appeal the determination.  Petitioner appealed the determination by requesting an interview with one of respondent’s health services directors.

Petitioner met with one of respondent’s health services directors (“director”) on April 13, 2017.  By memorandum dated April 25, 2017, the coordinator denied petitioner’s appeal.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 22, 2017.[1]

Petitioner contends that her objections to immunizations are based on genuine and sincerely-held religious beliefs and seeks a determination that the student is entitled to a religious exemption from the immunization requirements under PHL §2164.

Respondent contends that the appeal must be dismissed for failure to include the notice required by 8 NYCRR §275.11.  Respondent further argues that petitioner’s claimed objections to immunizations are not based on genuine and sincerely-held religious beliefs.  Specifically, respondent argues that petitioner’s concerns are primarily health-based.  Respondent additionally asserts that petitioner’s claimed religious opposition to immunization is “undercut” by the fact that her request for a religious exemption followed closely on the heels of her request for a medical exemption, which was denied. 

The appeal must be dismissed based upon the failure of petitioner to serve a notice of petition on respondent. The petition, without a notice of petition as required by 8 NYCRR §275.11, was served on respondent on May 25, 2017. The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11(a); see e.g. Appeal of Gaynor Sr., 51 Ed Dept Rep, Decision No. 16,293; Appeal of Hauk, 44 id. 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048).  A petition that does not contain the language required by §275.11 is fatally defective and does not secure jurisdiction over the intended respondent (see Appeal of Hauk, 44 Ed Dept Rep 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570).[2]  Respondent asserts that it was not served, at any time, with such notice.

In an application submitted pursuant to 8 NYCRR §276.5, petitioner submits a copy of the requisite notice dated June 26, 2017, and requests that this be accepted into the record “nunc pro tunc”; i.e., as if it were served on May 25, 2017 with the petition.  I decline to do so.  The purpose of 8 NYCRR §276.5 is to allow for the introduction of additional evidence and supporting papers relevant to the parties’ claims; it cannot be used to remedy jurisdictional defects in pleadings.  Once petitioner realized that her papers were jurisdictionally defective, her recourse was to personally serve papers which contained a notice of petition (see Appeal of Mitchell, et al., 40 Ed Dept Rep 88, Decision No. 14,428 [late service of corrected petition containing notice, which was not included in service of original submission, permitted under the circumstances]; Appeals of Sitaris and Saint Basil Academy, 43 id. 434, Decision No. 15,044 [same]).[3]  At that juncture, the Commissioner could accept the late pleading for good cause shown (see 8 NYCRR §275.16).  Therefore, I decline to accept petitioner’s additional submission.

Additionally, in the reply, petitioner argues that her failure to serve the notice of petition constituted “harmless error” because respondent submitted a timely answer to the petition.  I do not find this argument persuasive because, under petitioner’s logic, a respondent served with a petition that is jurisdictionally defective would be placed in the position of having to appear and concede jurisdiction (by virtue of such appearance) or fail to appear and risk an adverse determination.  Such respondent would be unable to appear solely to contest jurisdiction as the practice regulations governing appeals and other proceedings before the Commissioner do not contemplate such a procedure (see 8 NYCRR Parts 275, 276).  Therefore, I decline to hold that a petitioner’s failure to serve a notice of petition is rendered “harmless error” if a respondent submits a timely answer.

Petitioner also argues that a cover letter and verification reference the notice of petition and “[t]hese facts ... support a conclusion that a Notice of Petition was included within the papers served and/or filed” with my Office of Counsel.  To the extent petitioner argues that such documents demonstrate service of the notice on respondent, respondent has affirmatively stated that it received no such notice, attaching the documents with which it was served.  I note that these documents are identical to those filed with my Office of Counsel, and neither set contains a notice of petition.

Finally, petitioner attributes any error to “inadvertence” on behalf of an attorney who no longer works for petitioner’s attorney’s law firm and asserts that this constitutes good cause for acceptance of the late notice.  I do not find that petitioner’s allegations excuse the failure to timely serve the notice of petition.  Under the circumstances, I would not accept the law office’s failure as good cause for an untimely submission (see Appeal of Murphy, 57 Ed Dept Rep, Decision No. 17,234; Appeal of Brarens, et al., 51 id., Decision No. 16,317).

Although the appeal must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for a religious exemption on the student’s behalf at any time and that respondent must evaluate any such application - including any evidence petitioner may submit - in accordance with the requirements of PHL §2164(9) and 10 NYCRR §66-1.3 (see Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,214; Appeal of D.H., 52 id., Decision No. 16,425).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] By letter dated June 2, 2017, respondent’s counsel indicated that respondent did not oppose petitioner’s request for interim relief.

 

[2] Although petitioner’s failure to serve a copy of the notice would warrant dismissal in and of itself, I note that the copy of the petition received by my Office of Counsel also lacked a copy of the notice.

 

[3] According to petitioner’s §276.5 submission, the new version of the petition containing the notice of petition was not personally served on respondent but, rather, sent “Via Express Overnight Mail” to the attention of counsel for respondent.