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Decision No. 13,417

Appeal of KAREN LOPES-HURT from action of the Board of Education of the Hempstead Union Free School District relating to transportation.

Decision No. 13,417

(June 6, 1995)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Gilbert Henoch, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the refusal by the Board of Education of the Hempstead Union Free School District ("respondent") to transport her sons between home and a nonpublic school during the 1994-95 school year. The appeal must be dismissed.

On or about May 5, 1994, petitioner, on behalf of her sons, applied for transportation services to a nonpublic school. On July 15, 1994, respondent rejected the application as untimely. This appeal ensued.

Pursuant to Education Law '3635, transportation requests must be submitted to the district in writing on or before April 1 preceding the commencement of the school year for which transportation is requested, provided that no late request for transportation may be denied where there is a reasonable explanation for the delay (Appeal of Lovascio, 31 Ed Dept Rep 75; Appeal of Rugar, 28 id. 159). The board of education is initially responsible for determining the reasonableness of a particular explanation, and its determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Halsdorf and McClenahan, 30 Ed Dept Rep 268). Moreover, a late request must be granted, even in the absence of a reasonable explanation, if the requested transportation can be provided under existing transportation arrangements at no extra expense to the school district (Appeal of Lovascio, supra; Appeal of Ward, 29 Ed Dept Rep 153; Matter of Cronkrite, 24 id. 331).

Petitioner's appeal must be dismissed as moot. The Commissioner of Education will determine only matters in actual controversy and will not render a decision upon a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Knapp, 34 Ed Dept Rep 357; Appeal of Stopka, 34 id. 157; Appeal of Langenmayr, 30 id. 322). In its answer, respondent states that, despite the lateness of petitioner's request, because the transportation requested by petitioner can be provided without additional costs, it will provide such transportation. In view of respondent's agreement to grant petitioner's late request, the appeal is dismissed as moot.