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Decision No. 12,695

Appeal of LESLIE M. CZEREPAK from action of the Board of Education of the Monroe-Woodbury Central School District relating to transportation.

Decision No. 12,695

(May 1, 1992)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to change the transportation pickup point for petitioner's children. The appeal must be dismissed.

Petitioner resides on Museum Village Road South within the Monroe-Woodbury Central School District and has children attending the schools of that district. His children are transported to school from a pickup point on Bull Mill Road, which is approximately .4 of a mile from petitioner's home. Petitioner has had extensive correspondence and meetings with school district representatives, in which he has requested that his children's pickup point be changed to a spot along the street where he resides. By letter dated December 12, 1991, respondent board rejected petitioner's request. This appeal ensued.

Before addressing the merits of this appeal, it is necessary to review several procedural issues. First, petitioner seeks to bring this appeal as a class appeal on behalf of "other neighborhood children." Pursuant to 8 NYCRR "275.2, an appeal may be maintained on behalf of a "class of named or unnamed individuals only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class." There is no indication in the record that the class to be represented is so numerous that joinder of all members is impracticable or that the essential facts and legal questions are the same for all members of the class. Therefore, petitioner's request to prosecute this appeal as a class appeal is denied.

Respondent also contends that this appeal must be dismissed since the petition served upon it was not verified, as required by 8 NYCRR "275.5. However, the original petition filed with my Office of Counsel is properly verified. While petitioner should have served a conformed copy of the petition upon respondent, I will excuse his failure to do so, since respondent has failed to demonstrate any resulting prejudice (Appeal of Spataro, 25 Ed Dept Rep 206; Matter of Brandon 22 id. 223).

Respondent further requests that this appeal be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR "275.16). Respondent informed petitioner of its decision in a letter dated December 12, 1991, and this appeal was commenced on January 10, 1992. Accordingly, I find this appeal to be timely.

Petitioner contends that respondent's refusal to change the pickup point for his children is arbitrary and capricious because the present pickup point is dangerously located on a heavily travelled road where there are no sidewalks. Petitioner further maintains that a safe pickup point can be located on the street where he resides. Respondent denies that the pickup point is located in a dangerous location and maintains that it is not possible to locate a pickup point on petitioner's road, which is not suitable for school bus traffic. Respondent points out that Museum Village Road South is bounded by trees and a bank, lacks guard rails, has intersection alignment problems, and surface and drainage deficiencies. Respondent further points out that the most serious problem with that road is that it is less than 12 feet wide in at least two locations and less than 15 feet in several other locations. Since respondent's school buses are over 9 feet wide, respondent maintains that the narrowness of the Museum Village Road South presents a major safety issue.

Education Law "3635 expressly provides that a board of education is not required to provide door-to-door transportation. In lieu of transportation directly to and from a student's home, a board of education may provide transportation to and from pickup points designated by the board (Appeal of Donk, et al., 27 Ed Dept Rep 254; Appeal of Klein 27 id 76). In establishing any particular pickup point, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Matter of Horschel, 24 Ed Dept Rep 94; Matter of Brann, 23 id. 442).

Upon review of the record before me, I conclude that respondent did not abuse its discretion in declining to establish a pickup point on the road where petitioner resides. While all pickup points are hazardous to some degree and no such location can be absolutely safe (Gleich v. Volpe, et al., 32 NY2d 517, 346 NYS2d 806; Appeal of Eats, 29 Ed Dept Rep 481; Matter of Brann, supra), petitioner has not presented any evidence to support his contention that the current pickup point for his children is unduly dangerous (Appeal of Mistretta, 27 Ed Dept Rep 7). For example, the absence of sidewalks is not determinative of undue hazard since that is a common condition. In any event, a student's parents are not free from an obligation to assist their child in reaching the designated pickup point (Appeal of Stroub, 27 Ed Dept 270; Matter of Ryan, 24 id. 125; Matter of Antonette, 18 id. 413). Parents, rather than school authorities, are responsible for the safety of their children while traveling to and from school when they are not actually receiving transportation from the school district (Pratt, et al. v. Robinson, et al., 39 NY2d 554, 384 NYS2d 789; Matter of Lloyd, 24 Ed Dept Rep 340; Matter of Boccia, et al., 22 id. 494). Moreover, the record establishes that the alternative proposal by petitioner, Museum Village Road South, is inappropriate for school bus traffic.

I have reviewed petitioner's other contentions and find them to be without merit.