Decision No. 17,889
Appeal of CAROLINE SIMONIS, on behalf of CASANDRA SIMONIS, from action of the Board of Education of the Nanuet Union Free School District regarding transportation.
Decision No. 17,889
(July 30, 2020)
Mario L. Spagnuolo, Esq., attorney for respondent
TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Nanuet Union Free School District (“respondent”) denying her child (“the student”) transportation for the 2019-2020 school year. The appeal must be dismissed.
Petitioner and the student moved to respondent’s school district during the 2018-2019 school year. Because she filed a written request for transportation within 30 days of establishing residency therein, respondent provided transportation for the student to Paramus Catholic High School (“Paramus Catholic”), a nonpublic school, for that school year. By form dated April 10, 2019, petitioner requested transportation for the student to Paramus Catholic for the 2019-2020 school year. By email dated June 7, 2019, respondent informed petitioner that her request for transportation was denied because it was received after April 1, 2019.
By email dated September 4, 2019, petitioner wrote to respondent to inquire whether the student could receive transportation for the 2019-2020 school year. In an email response sent later that day, counsel for respondent explained that the district did not receive petitioner’s transportation request until May 31, 2019. Counsel for respondent further stated:
Exceptions can only be granted when there is no additional cost to the School District. In the case of Paramus Catholic, the cost would be about $13,000. Because of this, we cannot grant the transportation request.
This appeal ensued. Petitioner’s request for interim relief was denied on October 3, 2019.
Though not entirely clear, petitioner appears to argue that she submitted her request for transportation after the April 1 deadline because of a mistake by the nonpublic school. Petitioner seeks an order directing respondent to provide transportation for the student to Paramus Catholic for the 2019-2020 school year.
Respondent argues that the appeal must be dismissed as untimely. Respondent also argues that petitioner failed to request transportation before the April 1 deadline and that transportation would be a significant additional expense to the district.
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). Petitioner challenges respondent’s denial of her transportation request for the 2019-2020 school year. Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635). The 2019-2020 school year has ended; therefore, the issue of petitioner’s request for transportation is moot (see Education Law §3635; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).
Even if the appeal presented a live controversy, it would 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Respondent denied petitioner’s transportation request in an email to petitioner sent on June 7, 2019. Respondent utilized the email address petitioner provided on her written transportation request. This appeal was commenced on September 24, 2019, over five months later. Petitioner did not submit a reply, does not otherwise indicate when she received respondent’s determination, and does not set forth good cause for the delay in the petition (see 8 NYCRR §275.16). In the absence of any evidence to the contrary, I conclude that petitioner received notice of respondent’s denial on June 7, 2019 and that the appeal must be dismissed as untimely.
Additionally, even if the appeal was timely, 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635; Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295). 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
Even absent a reasonable explanation for the delay, a late 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Meyerson, 46 id. 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545). 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 Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Here, petitioner appears to argue that the student’s nonpublic school made an error in sending her transportation request to the wrong district. In support of the petition, petitioner attaches a letter dated September 9, 2019 and addressed “To Whom It May Concern.” In the letter, a representative of Paramus Catholic states that “[a]n error was made sending the ... transportation form of [the student] to the East Ramapo School District ... [t]he form should have been sent to the Nanuet School District.” However, it was petitioner’s responsibility to submit a timely request for transportation to respondent – the failure of nonpublic school authorities to timely submit a request on behalf of a parent is not a reasonable explanation for a late filing (Matter of Hendricks, 21 Ed Dept Rep 302, Decision No. 10,692). Additionally, petitioner’s request form was dated April 10, 2019. Thus, even if promptly delivered to respondent, it would still have been received after the April 1 deadline. I further note that respondent informed petitioner of the April 1 deadline in a letter dated January 2019.
I also find that petitioner has failed to prove that transportation could be provided to the student at no additional cost to respondent. Petitioner claims that a van that transported the student during the 2018-2019 school year has available seats to transport her during the 2019-2020 school year. Respondent denies petitioner’s assertion, stating that it “would absolutely provide transportation ... [i]f there was a free spot available on one of our contracted vans or buses ....” Respondent further asserts that transportation for the student would cost the district an additional $12,182 and has submitted a price list from its transportation contract supporting this assertion. Under these circumstances, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request.
THE APPEAL IS DISMISSED.
END OF FILE
 It appears that this was a typographical error, as the transportation request was stamped as received by the district on May 30, 2019.
 Respondent also argues that unsworn portions of the petition should be disregarded. It appears that respondent objects to a one-page narrative that accompanies the petition. Although respondent is correct that the statement is unsworn, I will nevertheless accept it into the record and afford it the appropriate weight which it is due as an unsworn statement (Appeal of Henry, 58 Ed Dept Rep, Decision No. 17,471; Appeal of M.S., 58 id., Decision No. 17,430; Appeal of Doe, 57 id., Decision No. 17,295).
 Petitioner first attempted to file an appeal with my Office of Counsel on or around September 9, 2019. That petition was returned for failure to include the notice required by Commissioner’s regulations §275.11.
 Moreover, petitioner’s subsequent communication with respondent in September 2019 appears to be in the nature of a request for reconsideration. A request for reconsideration does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No 15,914).