Decision No. 18,070
* Subsequent History: Matter of Guilderland Central School Dist. v New York State Educ. Dept., et al.; Supreme Court, Albany County; petition filed; May 18, 2022. *
Appeal of MAHALAKSHMI AZHAGIRISWAMY, on behalf of her child, from action of the Board of Education of the Guilderland Central School District regarding transportation.
Decision No. 18,070
(January 19, 2022)
Honeywell Law Firm, PLLC, attorneys for respondent, Shannon M. Capozzola, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Guilderland Central School District (“respondent”) denying her request for transportation on behalf of her child (“the student”). The appeal must be sustained.
Petitioner and the student reside within respondent’s district. During the 2020-2021 school year, respondent provided transportation for the student to attend an out-of-district nonpublic school. By email dated September 8, 2021, petitioner requested that respondent provide the student with transportation to the same nonpublic school for the 2021-2022 school year.
In a telephone conversation on September 9, 2021, respondent’s Director of Transportation (“director”) informed petitioner and her spouse that they had missed the deadline to request nonpublic school transportation for the 2021-2022 school year. During the conversation, petitioner and her spouse asserted that they had mailed respondent a transportation request prior to the June 24 deadline. The director informed them that the district’s Transportation Department had no record of receiving such a request “until one was e-mailed to [his] office on September 8, 2021.”
Respondent’s Assistant Superintendent for Business (“assistant superintendent”) avers that, on September 10, 2021, he verbally informed petitioner that he “was upholding the determination of the denial of transportation as the District did not receive a timely request for [the] student….” Additionally, in an October 13, 2021 email, the assistant superintendent informed petitioner: “[I]t is my determination to uphold the previous denial of transportation.” This appeal ensued.
Petitioner argues that she sent respondent a timely transportation request, notwithstanding the fact that respondent did not receive it prior to June 24, 2021. Petitioner further indicates that respondent denied a request from another district resident, Huyen Tran, under similar circumstances. She seeks a determination that the student is eligible for transportation to the nonpublic school for the 2021-2022 school year.
Respondent contends that the appeal must be dismissed as untimely. On the merits, respondent argues that petitioner’s transportation request was late; that petitioner has not proven that she submitted an earlier, timely request; and that the district would incur additional transportation costs if it granted petitioner’s request.
First, I must address respondent’s procedural defense. An appeal to the Commissioner must be commenced within 30 days from the decision or 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). The timeliness of this appeal hinges upon whether respondent’s October 13, 2021 email constituted a new determination, or a mere reiteration of the district’s earlier denial. The latter would constitute a request for reconsideration, which does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
I find that the assistant superintendent’s October 13, 2021 email constituted a new determination. Under the subject heading, “Private School Transportation Appeal Determination,” the assistant superintendent wrote: “You are appealing the September 9, 2021 determination by our Transportation Director to deny [the student] transportation to the [nonpublic school] … for the 2021-2022 school year … [I]t is my determination to uphold the previous denial of transportation.” Thus, based on the language of this email, respondent considered petitioner’s request to be an “appeal” which necessitated a decision by the assistant superintendent. Petitioner commenced the instant appeal less than 30 days thereafter; as such, I decline to dismiss the appeal as untimely.
Turning to the merits, a parent or guardian must submit a written request for transportation no later than the first day of April preceding the school year for which transportation is sought or, if the parent or guardian did not reside in the district as of April 1, within 30 days after establishing residency in the district (Education Law § 3635 ). The purpose of this deadline is to enable 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 request for transportation as late 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 or guardian 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). On appeal, the Commissioner will not set aside the board’s determination 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).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
Petitioner attests that she submitted her transportation request “in the beginning of March 2021”—well before the June 24 deadline. She describes the circumstances of her mailing as follows:
[I] put a stamp on the envelope which ha[d] the form inside and put it in the USPS Post Box facility in Stuyvesant Plaza ... [I] sent the transportation request form following the same method last year, and the district received the form.
Additionally, as noted above, petitioner asserts that respondent denied the transportation request of another district resident, Huyen Tran, under circumstances similar to those of petitioner (i.e., during the 2020-2021 school year, respondent had transported Ms. Tran’s child to the same nonpublic school as the student; Ms. Tran sent respondent a timely transportation request for the 2021-2022 school year and described the circumstances of the mailing; and respondent rejected Ms. Tran’s request as untimely, asserting that the district never received it).
In response, respondent’s director asserts that he inspected the district’s records but “found no indication that a transportation request for [the student] for the 2021-2022 school year had been made prior to September 8, 2021.” He further describes the manner in which the district receives and records transportation requests to nonpublic schools.
Based upon these assertions, petitioner is entitled to a presumption that she mailed the transportation request prior to the June 24 deadline (see Matter of Kahane, 9 id. 68, Decision No. 8,062 [holding that a presumption of mailing arises where a petitioner submits “clear and detailed proof that the papers were properly addressed, stamped and mailed”]). Petitioner has sworn that she mailed the form to respondent with correct postage and described the location where it was mailed (see Appeal of Calabrese, 43 id. 98, Decision No. 14,933, app to reopen 43 id. 237, Decision No. 14,982 [petitioner’s sworn assertion that “her husband mailed a written transportation request for the 2003-2004 school year to respondent by depositing the same in a United States Post Office mailbox” deemed sufficient proof of mailing]; see generally Terlizzese v. Robinson’s Custom Service, Inc., et al., 25 AD3d 547 [3d Dept 2006]). Additionally, petitioner’s sworn assertions are corroborated by the undisputed fact that she followed the same procedure last year, which resulted in respondent providing transportation to the student to and from the nonpublic school.
I further find that respondent has rebutted the presumption of mailing by offering an affidavit explaining the manner in which it receives and records transportation requests to non-public schools (compare Kihl v. Pfeffer, 94 NY2d 118, 122  [“mere denial of receipt” insufficient to rebut presumption]).
Ultimately, however, I find that petitioner has met her burden of proof given the undisputed fact that the request of another district resident was not received by respondent under materially identical circumstances. Respondent’s suggestion that both instances were attributable to postal error is implausible. Lost mail is an infrequent occurrence. The chance that the postal system lost the requests of two separate parents who mailed two separate written requests from two separate locations in 2021 is “possible, but not probable” (Appeal of LaJuett, 60 Ed Dept Rep, Decision No. 17,919). Therefore, under the unique circumstances of this appeal, I find that petitioner has met her burden of proving that she mailed her request prior to the June 2021 deadline. Consequently, respondent abused its discretion by refusing to provide the requested transportation.
This appeal illustrates the inherent challenges in proving that a transportation request was mailed or received. To avoid such situations in the future, I offer the following guidance: individuals seeking transportation to a nonpublic school should either send the request via registered mail, return receipt requested, or hand-deliver the request to the district office and request a copy that is stamped as received. Additionally, school districts should consider establishing a web portal or other online system to receive transportation requests, which could provide a digital receipt to parents that would demonstrate the time and date of such requests.
I have considered respondent’s remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent provide petitioner’s child with transportation to the nonpublic school for the 2021-2022 school year.
END OF FILE
 In accordance with Executive Orders issued by the Governor of the State of New York, the April 1 deadline to file a request for transportation to a nonpublic school (Education Law § 3635) was extended to June 24, 2021 for the 2021-2022 school year.
 I take notice that Ms. Tran filed an appeal to the Commissioner of Education in October 2021, which was withdrawn on November 3, 2021 (see 8 NYCRR 276.6).
 As indicated above, this deadline was extended to June 24, 2021 for transportation requests pertaining to the 2021-22 school year.
 Appeal of Giorno-Tocco (55 Ed Dept Rep, Decision No. 16,877) is distinguishable, as the petitioner in that appeal only asserted “upon information and belief  that [she] completed and mailed the form to respondent” (emphasis added).
 I note that a petitioner need not prove receipt of a request for transportation by a school district to prove mailing (Shapiro v. McAndrews, 84 Misc.2d 1078 [Sup Ct, Nassau County 1975]; Matter of Pinto, 13 Ed Dept Rep 151, Decision No. 8,763).