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Decision No. 13,113

Appeal of STEPHANIE KORZYK, on behalf of her children, M. Zachary and Nichole, from action of the Board of Education of the South Colonie Central School District relating to transportation.

Decision No. 13,113

(February 24, 1994)

Becker & Becker, Esqs., attorneys for petitioner, Lawrence E.

Becker, Esq., of counsel

Tabner, Laudato & Ryan, Esqs., attorneys for respondent, C. Theodore Carlson, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport her children to a nonpublic school for the 1993-94 school year. The appeal must be dismissed.

Petitioner's children have attended a nonpublic school for three years with transportation provided by respondent. Petitioner submitted her present request for transportation on September 10, 1993. Respondent denied petitioner's request as untimely. This appeal followed.

Petitioner contends that because she originally submitted a request for transportation on February 13, 1993, her subsequent request of September 10, 1993 was timely. Respondent states that they had no record of the February 13, 1993 request and, therefore, dismissed the September 10, 1993 request as untimely. Moreover, respondent claims it would cost the district an additional $5,489.64 to supply the transportation. Respondent also asserts that the appeal is untimely.

With respect to the timeliness of this appeal before me, it is well settled that 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 (8 NYCRR 275.16). The appeal was commenced on October 25, 1993, more than 30 days after September 13, 1993, when respondent notified petitioner that her request had been denied. Petitioner, however, seeks to have the delay excused because she contends that she was not aware that the September 13, 1993 decision was final because of her continuing dialogue with respondent. In support of that contention, petitioner notes that the decision of September 13, 1993 was confirmed in a letter dated September 24, 1993 from respondent to Congressman McNulty. However, that letter, written in response to a letter from the director of the nonpublic school to Congressman McNulty dated September 15, 1993, can at most be regarded only as a request for reconsideration. An application to reconsider a previous decision does not extend the time in which an appeal may be taken from an initial determination (Appeal of Guido, 33 Ed Dept Rep 244; Appeal of Zeff, 29 id. 5).

Petitioner further seeks to have the delay in bringing this appeal excused because she was allegedly unaware of the appeal process and filed her appeal as soon as she received papers explaining the process. However, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Saeger, 31 id. 528; Appeal of Pitney Bowes, Inc., 31 id. 290). Because this appeal was not commenced within 30 days of the September 13, 1993 decision, it is dismissed as untimely.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A request for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested, provided that a late request for transportation may not be rejected if there is a reasonable explanation for the delay (Education Law '3635(2); Appeal of Williams, 33 Ed Dept Rep 137; Appeal of Nolan, 32 id. 352). The board of education must determine in the first instance whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Williams, supra). The Commissioner of Education will not set aside the board of education's determination in such a matter unless it is unreasonable and constitutes an abuse of discretion (Appeal of Williams, supra; Appeal of Block, 28 Ed Dept Rep 308). Aside from petitioner's assertion that she submitted a transportation request on February 13, 1993, she supplies no documentation to support that contention. The record reflects that a parent may retain a portion of the transportation request form after submission. Petitioner does not supply a copy of that form. Absent any concrete, independent documentation of the transportation request, respondent acted reasonably in concluding that the September request was late and that the explanation for such late request was not reasonable (Appeal of Masters, 25 Ed Dept Rep 223).

Petitioner also contends that because of certain personal difficulties, it is a hardship for her to transport her children to the nonpublic school. While I understand petitioner's concern, personal hardship is not a basis for granting petitioner's late request for transportation (SeeAppeal of Kluge, 31 Ed Dept Rep 107; Matter of Nevin, 25 id. 86, Nevin v. Ambach, et al., Supreme Court, Albany County, February 28, 1986, Bradley, J.).

Even in the absence of a reasonable explanation for delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional expense to the school district (Appeal of Williams, supra; Appeal of Nolan, supra). In this case, however, the record indicates that providing the requested transportation would be an additional expense to the school district. Under the circumstances, I find that the board did not abuse its discretion in refusing to transport petitioner's children.