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Decision No. 17,753

Appeal of KRISTINE FERRUCCI-EGAN, on behalf of her children, CAITLIN and SHANNON EGAN, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 17,753

(September 18, 2019)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

BERLIN, Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Malverne Union Free School District (“respondent”) to deny her daughters (“the students”) transportation to a nonpublic school during the 2019-2020 school year.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district who elected to enroll the students in a nonpublic school located in the district.  On April 1, 2019, petitioner applied for transportation on the students’ behalf for the 2019-2020 school year.  By letter dated April 1, 2019, the district’s assistant superintendent for district operations (“assistant superintendent”) denied petitioner’s application upon determining that the students were ineligible for transportation.  The letter stated that the distance between home and school for the students was 0.9 miles.  According to respondent’s transportation policy, all children attending nonpublic schools “who live more than 2.0 miles, but not more than 15 miles from the school they legally attend” are entitled to transportation.  Petitioner appealed the denial of her application to respondent.  By letter dated May 15, 2019, respondent affirmed the assistant superintendent’s determination.  This appeal ensued.

Petitioner alleges that the students are entitled to transportation because the district provides comparable transportation to “multiple children in [her] immediate area” who attend public school, including “the child next door,” who she claims is transported to a public elementary school located one mile from the child’s home.  Petitioner seeks a determination that the students are entitled to transportation for the 2019-2020 school year.

Respondent contends that the appeal must be dismissed for improper service.  On the merits, respondent argues that petitioner fails to establish that the students are entitled to transportation.  Specifically, respondent contends that its policy of providing certain transportation to public elementary school students is mandated by an order of the Commissioner of Education, rendered in Appeal of Mitchell and Smith (18 Ed Dept Rep 99, Decision No. 9,761), and that it applied this policy in a reasonable manner.

First, I must address a procedural issue.  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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Here, the affidavit of service submitted with the petition reveals that petitioner herself served the petition; petitioner’s signature on this affidavit attests that she is “not a party in this proceeding.”  As petitioner is a party to the proceeding, the petition was not properly served and 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).

While this deficiency alone would require dismissal of the petition, service of the petition was also deficient in numerous other respects.  The affidavit of service identifies both May 15, 2019 and May 24, 2019 as the dates of service and provides an incorrect address for respondent’s administration office, the location where service was allegedly effectuated.  In fact, respondent indicates that the address is not even within the geographical boundaries of the district.  Additionally, the affidavit of service indicates that petitioner served the petition on an unnamed “Administration Office employee”, which violates 8 NYCRR 275.9(a), which requires the affidavit of service to indicate the name and address of the person served.  In its answer, respondent indicates that, on May 28, 2019, someone claiming to be “[p]etitioner’s ‘sister’” provided the assistant to the assistant superintendent with a “multiple[-]page document” that included the notice of petition, the petition, and the affidavit of service.  Petitioner submits no reply or other evidence to refute respondent's claim of improper service.

Therefore, for all of the above reasons, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner's regulations and the appeal must be dismissed for improper service.  In light of this conclusion, I need not address petitioner’s remaining claims.

THE APPEAL IS DISMISSED.

END OF FILE