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Decision No. 14,136

Appeal of MARY JEAN DIMARTINO, on behalf of MEGAN, RICHARD, and ERIC DIMARTINO, from action of the Board of Education of the Cuba-Rushford Central School District regarding transportation.

Decision No. 14,136

(May 28, 1999)

MILLS, Commissioner.--Petitioner appeals the refusal by the Board of Education of the Cuba-Rushford Central School District ("respondent") to transport her children Megan, Richard and Eric to a nonpublic school. The appeal must be sustained.

Petitioner and her three children are residents of respondent’s school district. On March 13, 1998, petitioner requested transportation for her children to Southern Tier Catholic School ("Southern Tier"), a nonpublic school in Olean, New York. By letter dated March 18, 1998 respondent's superintendent informed petitioner that respondent had denied her request because Southern Tier was found to be 15.4 miles from petitioner’s home, thus beyond the 15-mile limit for transportation to a private school. After receiving this letter, petitioner drove the distance from her home to the school in two different vehicles and found the mileage to be 14.7 miles and 14.8 miles, respectively. Another individual drove the route and reported the mileage to be 14.9 miles. Petitioner alleges she calibrated her vehicle by using the mileage markers on the highway.

Petitioner had apparently made the same transportation request in 1997, which was denied. However, the 1997 denial was based upon respondent’s measurement of a distance of 15.2 miles between her home and Southern Tier. Petitioner attended respondent's board meeting on April 21, 1998, and questioned the discrepancy in respondent’s two measurements. She was advised that respondent had used the same vehicles and driven the same route in 1998 as it had in 1997.

Petitioner commenced this appeal on May 18, 1998. She requests that I order respondent to mechanically calibrate its vehicles and measure the route again.

Respondent has not submitted an answer to the petition pursuant to 8 NYCRR ""275.12 and 275.13, despite personal service and a letter from my Office of Counsel informing respondent that its answer was late and advising respondent of the consequences of failing to submit an answer. Accordingly, the factual allegations set forth in the petition are deemed to be true statements that have been admitted by respondent (8 NYCRR "275.11; Appeal of O’Bomsawin, 37 Ed Dept Rep 554; Appeal of T.B., 35 id. 408). In addition, although respondent’s superintendent submitted correspondence relating to this appeal, such correspondence was not submitted in accordance with "276.5 of the Commissioner’s regulations and therefore is not part of the record and will not be considered in this appeal.

Respondent’s failure to submit an answer compels me to sustain this appeal. Pursuant to Education Law "3635(1), 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 from home to school. A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor to make such measurements with the accuracy of a professional survey (Appeal of Ameri, 37 Ed Dept Rep 652; Appeal of Jagoda, 34 id. 154; Appeal of Shah, 31 id. 312; Appeal of Taylor, 26 id. 228). Thus, a school district may use a calibrated odometer to measure distance (Appeal of Taylor, supra). However, due to respondent’s failure to answer I must deem all the factual allegations set forth in the petition to be true. Petitioner claims that the mileage was either 14.7, 14.8 or 14.9 miles from her home to the nonpublic school. Letters from respondent stating the distance is beyond the 15-mile limit are attached as exhibits to the petition, but only for the purpose of disputing their accuracy. Since there is nothing in the record to explain whether respondent measured the distance with a properly calibrated odometer or other measuring device, I am constrained to sustain the appeal.

In light of this disposition, I remind respondent of its responsibility to submit an answer pursuant to ""275.12 and 275.13 of the Commissioner's regulations when it is named as a respondent in any future appeals.


IT IS ORDERED that respondent's determination that the distance between petitioner's residence and the Southern Tier Catholic School exceeds 15 miles be set aside and that the matter be remanded to respondent; and

IT IS FURTHER ORDERED that, on remand, respondent measure the route from petitioner’s home to the Southern Tier Catholic School, using a vehicle with a calibrated odometer or other properly calibrated measuring device.