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Decision No. 12,979

Appeal of EUGENE HORST, JR. from action of the Board of Education of the City School District of the City of Little Falls regarding transportation.

Decision No. 12,979

(August 3, 1993)

Blumberg & Carrig, attorneys for respondent, Bart M. Carrig, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to transport his daughter to a nonpublic school. The appeal must be dismissed.

Petitioner, who appears without the assistance of counsel, alleges that his daughter is entitled to transportation to a nonpublic school in the village of Herkimer, New York. Petitioner has not identified the nonpublic school in question, making it impossible for me to determine the distance between his home and the school (see, Appeal of Hiller, 28 Ed Dept Rep 439, 441). The record does not indicate when, if ever, petitioner requested respondent to provide transportation to the nonpublic school, nor is there evidence of the district's response.

The Regulations of the Commissioner of Education provide:

The petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of (8 NYCRR 275.10).

In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which it seeks relief (Appeal of the San Remo Civic Assn., Inc., 28 Ed Dept Rep 175, 177). I recognize that, when a petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate (Appeal of DeGroff, 31 Ed Dept Rep 332, 334; Application of a Child with a Handicapping Condition, 28 id. 519, 522). The record before me is so deficient, however, that review of petitioner's claim is simply not possible. Because petitioner has failed to establish facts entitling him to relief, the petition must be dismissed.

The appeal would have been dismissed on independent grounds, in any event. As a city school district, respondent has no obligation to provide transportation for non-disabled students residing within the school district (Education Law '3635[1][c]; Appeal of Cassin, 32 Ed Dept Rep 373, 376; Appeal of Dandreano, 28 id. 109). Correctly, petitioner suggests that students residing outside the city limits but within the boundaries of an enlarged city school district are entitled to transportation in accordance with the provisions of Education Law '3635 (Education Law '2503[12]; Matter of Antonucci, 21 Ed Dept Rep 93; Matter of Collar, 14 id. 327, 328; see, Matter of Downey, 5 id. 42). In this case, however, although the district includes territory outside the Little Falls city limits, it is not organized as an enlarged city school district. As a matter of law, therefore, respondent is not obligated to provide transportation pursuant to Education Law '2503(12) or '3635 (Matter of Downey, 5 Ed Dept Rep 42, supra).