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Decision No. 14,296

Appeal of JANINE M. and DOMINICK TOMASSETTI, on behalf of BRIELLA NICOLE TOMASSETTI, from action of the Board of Education of Plainedge Union Free School District regarding admission to kindergarten.

Decision No. 14,296

(January 21, 2000)

Ingerman Smith, LLP, attorneys for respondent, Anna M. Scricca, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Plainedge Union Free School District ("respondent") to admit their daughter to kindergarten. The appeal must be dismissed.

Petitioners’ daughter, Briella, was born on December 2, 1993 at 12:26 a.m. On March 11, 1998, petitioners requested that Briella be admitted to respondent’s kindergarten in September 1998. By letter dated March 25, 1998, respondent denied this request. On March 31, 1998 petitioners appeared before respondent to make a second request for Briella’s admission. By letter dated May 4, 1998, respondent denied this request. This appeal ensued. Petitioners’ request for interim relief was denied on July, 17, 1998.

Petitioners contend that Briella missed the December 1 cutoff for admission to respondent’s kindergarten by a mere 26 minutes. Petitioners maintain that Briella is academically and socially ready for kindergarten, having previously attended nursery school/preschool for two years. They claim that respondent’s refusal to deviate from their admission policy is arbitrary, capricious and an abuse of discretion.

Respondent claims that this appeal is untimely. Respondent also claims that Education Law "3202(1) gives it discretion to refuse admission to a child who has not attained the age of five by the first of December. Respondent maintains that it has not made any exceptions to this rule.

I will first address the issue of timeliness. An appeal to the Commissioner must be commenced within 30 days of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). This appeal was commenced on July 8, 1998, more than 30 days after either the March 25th or May 4th letters denying Briella admission to kindergarten. Petitioners have stated that they were not aware of the 30-day rule. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141). Since I find no unusual circumstances in this case, the appeal must be dismissed as untimely.

This appeal must also be dismissed as moot. The Commissioner will not render a decision where the facts upon which the claim is based no longer exist. Since the 1998-99 school year is over and the only relief petitioners sought was Briella’s placement in respondents’ kindergarten for that school year, the matter has become moot (Appeal of Meng, 38 Ed Dept Rep 59, Decision No. 13,981; Appeal of Laudin, 37 id. 3, Decision No. 13,789; Appeal of Kline, 35 id. 91, Decision No. 13,476).

The appeal also fails on the merits. The language of Education Law "3202(1) that permits a board of education to refuse admission to a child who has not attained the age of five by December first is clear and unambiguous. It is apparent, therefore, that respondent was acting within its legal authority in refusing admission to petitioners’ daughter (Matter of Sollitto, 31 Ed Dept Rep 138, Decision No. 12,595). Having acted in accordance with Education Law "3202(1), respondent’s actions cannot be deemed to be arbitrary or capricious (Frost v. Yerazunis, 53 AD2d 15).

While a board of education may, in its discretion, admit children at an earlier age, a parent cannot compel such an exercise of discretion (Matter of Sollitto, supra).