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Decision No. 12,974

Appeal of LISA WHITAKER from action of the Board of Education of the Roosevelt Union Free School District regarding transportation.

Decision No. 12,974

(August 2, 1993)

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

SOBOL, Commissioner.--Petitioner appeals respondent's denial of her transportation request. She seeks an order reimbursing her for the cost of transporting her son between home and a nonpublic school during the 1992-93 school year and transportation for her son during the 1993-94 school year. The appeal must be dismissed.

Before reviewing the merits of this appeal, I will address two procedural issues. Petitioner offers new allegations and exhibits in her reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR '275.3, '275.14). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, I will not consider the new allegations and exhibits included in petitioner's reply.

Respondent contends that petitioner's appeal as to the 1992-93 school year must 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, unless excused by the Commissioner for good cause. The reasons for the delay must be set forth in the petition (8 NYCRR '275.16). In this instance, petitioner's son was denied transportation for the 1992-93 school year in October 1992, but petitioner did not commence this appeal until April 14, 1993, approximately six months later. Petitioner offers no explanation for the delay. Accordingly, I find that petitioner's appeal as to the 1992-93 school year is untimely and must be dismissed.

The appeal must also be dismissed on the merits. Petitioner's requests for transportation for the years in question were denied by respondent because petitioner does not reside within 15 miles of the nonpublic school her son attends. Education Law '3635(1) requires school districts to provide transportation between home and school for pupils who reside no more than 15 miles from the school they legally attend and authorizes districts to provide transportation in excess of 15 miles only with voter approval. The voters of the Roosevelt district have not approved transportation services beyond 15 miles. Petitioner does not dispute that her home is not within the 15-mile limit. Consequently, there is a reasonable basis for respondent's determination that petitioner's son is not eligible for the requested transportation (Matter of Eberhardt, 25 Ed Dept Rep 263; Matter of Rosen, 20 id. 136).

Petitioner, nonetheless, requests that I order respondent to provide her son with transportation to the nonpublic school in question because respondent has provided transportation to other students who resided more than 15 miles from the schools they attend. Respondent admits that in the past it has erroneously provided transportation to some students who resided more than 15 miles from school, but has discontinued such services. Transportation previously supplied in error does not require a board of education to continue to supply such transportation (Appeal of Zeff, 29 Ed Dept Rep 5; Matter of Nevin, 25 id. 86). If a board of education is providing transportation for pupils who are not legally entitled to it, the solution is to discontinue such transportation and not, as petitioner argues, to compound the error and illegally transport additional pupils (Matter of Villareale, 16 Ed Dept Rep 393).