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Decision No. 12,586

Appeal of NORMAN and ROBIN KLUGE from action of the Board of Education of the Merrick Union Free School District in connection with transportation.

Decision No. 12,586

(September 19, 1991)

Ballon, Stoll & Itzler, Esqs., attorneys for petitioner, Gary M. Kushner, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

SOBOL, Commissioner--Petitioners appeal from respondent's decision to deny transportation to their son on the grounds that the student resides less than one-half mile from the school he attends. The appeal must be dismissed.

Although the record before me is not entirely clear, it appears that prior to 1979, the former owners of the home where petitioners reside was bounded on the east by Lindenmere Drive and on the west by Gregory Avenue. At that time the residence was known as 2312 Lindenmere Avenue. In 1979, the former owners of petitioners' residence apparently split the property and constructed a new home between the original residence and Lindenmere Drive. It appears that the address of the home where petitioners now reside then became 1900 Gregory Avenue.

Consistent with its policy, children residing in the Merrick Union Free School District are eligible for transportation if they live more than one-half mile from the school they attend. When petitioners requested transportation for their son for the 1988-89 school year, they were denied because they lived less than one-half mile from the local school. During the spring of 1989, respondent was informed that petitioner had moved to 2318 Lindenmere Drive, a residence more than one-half mile from the student's school. When respondent's assistant superintendent visited that address, he learned that petitioners did not reside there, but still resided at 1900 Gregory Avenue. The assistant superintendent then met with one of the petitioners who confirmed that they were, in fact, planning to move to 2318 Lindenmere Drive. The assistant superintendent informed petitioners that if they moved to that address, their son would be eligible for transportation.

In September 1989, petitioners' son received transportation. Respondent maintains that it has no clear record to explain why it provided transportation at that time, but believes it may have been based upon a mistaken belief that petitioners resided at 2318 Lindenmere Drive. The record also indicates that sometime after November 13, 1989, petitioners supplied respondent with a copy of a letter from the Town of Hempstead indicating that they could use 2312 Lindenmere Drive as their street address instead of 1900 Gregory Avenue. In March 1991, respondent apparently reviewed its records and determined that petitioners' son was ineligible for transportation because regardless of his address he still lived less than one-half mile from the school he attends. This appeal ensued.

Before addressing the merits of this appeal, it is necessary to address a procedural issue raised by respondent. Petitioners submit a reply to respondent's answer that raises new issues. Pursuant to the Regulations of the Commissioner of Education, a reply may respond to affirmative defenses and to new material raised in an answer (8 NYCRR 275.3, 275.14). The reply, however, does not provide an opportunity to raise new issues (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 258). New issues set forth in petitioners' reply are not properly before me, therefore, and will not be considered.

Respondent also contends that this appeal must be dismissed, since the petition served upon it was not verified, as required by Regulations of the Commissioner of Education "275.5. However, the original petition filed with my Office of Counsel is properly verified. While petitioners should have served a conformed copy of the petition upon respondent, I will excuse their failure to do so, since respondent has failed to demonstrate any resulting prejudice (Matter of Brandon, 22 Ed Dept Rep 223; Matter of Silver, 19 id. 444).

Petitioners contend that since they have, in effect, two addresses, and an easement over the property in back of their residence giving them access to Lindenmere Drive, respondent must measure the distance between their home and the school from Lindenmere Drive rather than Gregory Avenue. It is undisputed that the district from Lindenmere Drive to the school is more than one-half mile and would require respondent to provide the requested transportation. However, the proper route for purposes of measurement for transportation eligibility is the shortest distance along public roads between a residence and the school (Appeal of David, 30 Ed Dept Rep 399; Appeal of Vanscoter, 26 id. 226; Matter of Gropp, 21 id. 90). The record before me indicates that respondent determined that petitioners' son was ineligible for transportation because the distance between their residence, from Gregory Avenue, and school is less than one-half mile. The fact that the distance between petitioners' home and the school their son attends may be measured along two different routes, one of which is longer than the other, does not entitle petitioners to transportation. Therefore, even though the distance from Lindenmere Drive to the school is over one-half mile, that factor is not determinative.

Petitioners further contend that they were informed by respondents that if they lived on Lindenmere Drive, they would be entitled to transportation. Since the Town of Hempstead has now agreed to let them use either a Lindenmere Drive or Gregory Avenue address, petitioners maintain they are entitled to transportation. Petitioners' contentions, however, ignore the fact that based on a measurement of the shortest distance along public roads between home and school, their home is still less than one-half mile from the school their son attends, regardless of the address. Therefore, the mere change of address does not alter the situation or, otherwise, affect the ultimate determination on eligibility.

Petitioners also contend that respondent's denial of transportation is arbitrary and capricious because the bus their son would ride has space available and that providing him with transportation would not result in any additional cost to the school district. Eligibility for transportation under "3635 of the Education Law is determined on the basis of the distance between a child's home and the school he or she attends (Education Law "3635[1]; Matter of Studley v. Allen, 24 AD2d 678, 261 NYS2d 138). Although there may be a bus stop in close proximity to petitioners' home, it is well settled that a board of education lacks the authority to transport children who are ineligible for transportation under the mileage limitations, notwithstanding the fact that there may be room on the bus for them (Appeal of Duek, 28 Ed Dept Rep 7; Appeal of Pavony, et al., 27 id. 295).

Petitioners also argue that they are entitled to transportation because respondent provides transportation to other ineligible children. Respondent denies the allegation, stating that whenever it is made aware that an ineligible student is being transported, such service is discontinued. Transportation that is previously supplied in error does not require a board of education to continue to provide such transportation (Appeal of Zeff, 29 Ed Dept Rep 5; Matter of Nowak, 22 id. 91). Moreover, as stated in Matter of Villareale, 16 Ed Dept Rep 393, 394:

If it were true that the district is providing transportation for pupils who are not legally entitled to it, the solution would be to discontinue such transportation and not, as petitioner suggests, to compound the error and illegally transport additional pupils.

Therefore, even if petitioners are correct that other students may be receiving transportation in violation of the district's policy, it is not, as petitioners argue, a basis for granting the relief requested.

Petitioners further maintain that since they are both employed and need two incomes to support their family, they are unavailable to transport their son privately to school. In addition, when their son did receive transportation, petitioners contend that he formed relationships with other children on the bus and discontinuance of transportation for their son will disrupt those relationships. Eligibility for transportation is based on the distance between home and school and financial or emotional hardship is not a basis for granting transportation (Matter of Nevin, 25 Ed Dept Rep 86; Nevin v. Ambach, et al., Supreme Court, Albany County, February 28, 1986, BRADLEY, J.; Matter of Eberhardt, 25 id. 263).

Finally, petitioners maintain that respondent's decision in this matter is arbitrary and capricious because petitioners relied upon respondent's past provision of transportation for their son when the mother sought employment outside the home. The fact that respondent provided transportation in the past does not estop respondent from declining to provide transportation in the future. It is well settled that estoppel may not be asserted against a public entity (Public Improvements Inc. v. Bd. of Ed., 56 NY2d 850, 453 NYS2d 170; Matter of Kevin, supra).