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Decision No. 13,374

Appeal of NADINE CASE, on behalf of VIRGINIA CASE, from action of the Board of Education of the Saranac Lake Central School District regarding transportation.

Decision No. 13,374

(March 15, 1995)

Robert E. White, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport her daughter, Virginia, to a nonpublic school in Lake Placid for the 1994-95 school year. The appeal must be dismissed.

Virginia attends a nonpublic school in Lake Placid. On March 29, 1994, petitioner requested transportation for Virginia between 52 Broadway in Saranac Lake to the nonpublic school, a distance of approximately 11 miles. By letter dated April 26, 1994, respondent refused that request. In that letter respondent observed that because 52 Broadway was petitioner's office and not her residence, it could not provide transportation from that location. Respondent also noted that petitioner resides more than 15 miles from the nonpublic school.

Petitioner tried to contact the superintendent to discuss her request, but was unsuccessful in doing so. By letter dated August 10, 1994, petitioner asked respondent's president to review this matter. In that letter, petitioner asserted that during the school year, she and Virginia will be residing with petitioner's fiancee at 40 Lower Saranac Lake, which is approximately 11 miles from the nonpublic school Virginia attends. Petitioner argued that Virginia was, therefore, entitled to the requested transportation. Petitioner commenced this appeal on November 4, 1994.

Respondent contends that the appeal should be dismissed as untimely. Commissioner's regulation '275.16 provides 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. The Commissioner may excuse a failure to commence an appeal for good cause set forth in the petition. In this case, no reason is set forth in the petition. The action which petitioner challenges occurred on April 26, 1994, when respondent refused petitioner's transportation request. Assuming petitioner would have received notice of denial a few days after notification was sent, this appeal should have been commenced in the late part of May 1994. Instead, petitioner tried at least twice to have respondent change this decision, and did not commence this appeal until November 4, 1994. Those attempts amount to efforts to gain reconsideration or reversal of the decision. Such requests for reconsideration do not extend the time in which an appeal must be commenced (Appeal of Regan, 34 Ed Dept Rep 72; Appeal of Moore, 33 id. 703; Appeal of Zeff, 29 id. 5). Accordingly the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Pursuant to Education Law '3635(1)(a), a board of education is required to provide transportation to students residing in the district provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route between home and school. Respondent contends that district records show that petitioner and Virginia reside on Upper Saranac Lake, which is more than 15 miles from the school Virginia attends. Because Virginia does not reside within the mileage limits established by statute, respondent maintains it need not provide the requested transportation. Petitioner concedes that for approximately two years, she has lived in a winterized camp on Upper Saranac Lake. However, petitioner maintains that the camp is virtually inaccessible during winter months and subject to frequent and long periods without electricity. Because of those difficulties, petitioner asserts that during the 1994-95 school year, she and Virginia are residing at 40 Lower Saranac Lake which is approximately 11 miles from the nonpublic school.

Respondent responds that it will provide the requested transportation if petitioner and Virginia actually reside at 40 Lower Saranac Lake. In particular, respondent has suggested that petitioner could verify her residence by submitting copies of bills, correspondence, a voter registration card, a driver's license and the top portion of a recently filed federal income tax return. However, the record contains no evidence, other than petitioner's bare assertion, that she and Virginia reside at 40 Lower Saranac Lake. Accordingly, there is no basis to grant petitioner's request.

I note, however, that transportation must be furnished for certain pupils attending a nonpublic school, in accordance with Education Law '3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pickup points for students living outside the statutory mileage limits. The district is then required to provide transportation between such pickup points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pickup points to any nonpublic school to which regular home to school transportation is not already being provided (Matter of Cantone, 22 Ed Dept Rep 200; Matter of Safar, 22 id. 93; Matter of Nowak, et al., 22 id. 91). Therefore, if respondent currently provides transportation for one of its residents to the nonpublic school in question pursuant to Education Law '3635(1)(a), it must provide transportation for Virginia from a centralized pickup point.

I have reviewed petitioner's remaining contentions and find them without merit.