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Decision No. 13,100

Appeal of ANDREW FARBER from action of the Board of Education of the Great Neck Union Free School District regarding admission to school.

Decision No. 13,100

(February 17, 1994)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a fifteen year old student, appeals respondent's refusal to allow him to attend school in the Great Neck Union Free School District. The appeal must be dismissed.

Prior to August 1993, petitioner lived with his mother in the Syosset Central School District and attended Syosset schools. At the end of August, petitioner's father, who resides in the Great Neck District, presented Andrew for enrollment in respondent's schools. Andrew was enrolled.

The record indicates that petitioner is the subject of a custody dispute between his parents. In a September 20, 1993 order, modified on September 22, 1993, Justice Joseph J. Saladino directed petitioner's father and respondent board to immediately "disenroll" petitioner from the Great Neck Schools (Farber v. Farber, Supreme Court, Nassau County, September 22, 1993, SALADINO, J.). Respondent complied with that order, and this appeal ensued.

Petitioner contends that his exclusion from the Great Neck schools was improper because respondent board acted without first complying with the due process provisions of '100.2(y) of the Regulations of the Commissioner of Education. Respondent contends that it acted properly.

Initially, I note that petitioner is under the age of 18 and does not claim to be emancipated. Because an unemancipated person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law '310, the appeal must be dismissed (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 43).

In addition, petitioner is essentially challenging Justice Saladino's order that petitioner be enrolled in the Syosset Central School District. The decision of a Justice of the Supreme Court of the State of New York is not subject to review by the Commissioner of Education. A challenge to Justice Saladino's order can only be made within the judicial system and not by collateral attack in a '310 proceeding before the Commissioner of Education.

Moreover, 8 NYCRR 100.2(y) is not applicable in this case. Section 100.2(y) sets forth procedures to be followed by a board of education when it makes a determination that an individual is not a resident of its district and, therefore, not entitled to attend its schools on a tuition-free basis. In this matter, respondent made no determination regarding petitioner's residency, but merely complied with an order issued by a court of competent jurisdiction. Accordingly, respondent was not required to adhere to 8 NYCRR 100.2(y) before complying with Justice Saladino's order.