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Decision No. 14,472

Appeal of JUDITH NOCERINO, on behalf of DOMINIC NOCERINO, from action of the Board of Education of the Three Village Central School District regarding student suspension.

Decision No. 14,472

(October 11, 2000)

Bondi & Iovino, attorneys for petitioner, Anthony F. Iovino, Esq., of counsel

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, Dominic, by the Board of Education of the Three Village Central School District ("respondent"). The appeal must be dismissed.

On June 13, 2000, Dominic and another student, R.L., were involved in an altercation that resulted in injuries to J.M., a fellow seventh grade student at Paul J. Gelinas Junior High School. To maintain order during final exams, Principal Marion Gaigal determined that Dominic and R.L. should take their remaining exams on June 14-19 separately from the rest of the class at an alternate site in the school building.

On June 15, 2000 Ms. Gaigal met with petitioner, Dominic and Dean of Students Michael Tiberius. Ms. Gaigal provided petitioner with witness statements and a letter from a physician who had treated J.M. after the altercation. By letter dated June 20, 2000, Ms. Gaigal notified petitioner that Dominic was suspended from school for five days beginning on September 6, 2000 for harassing J.M. The letter informed petitioner of her right to request an immediate informal conference with the principal wherein Dominic would be allowed to give his version of the facts and petitioner could question the complaining witness in accordance with Education Law "3214(3)(b). Petitioner and Ms. Gaigal arranged to meet on June 27, at which time petitioner and Dominic arrived prepared to question J.M. and accompanied by an attorney. Ms. Gaigal objected to the presence of petitioner's attorney and canceled the conference when he declined to excuse himself. However, Ms. Gaigal met with petitioner's attorney privately.

Petitioner asserts that the penalty imposed is excessive because Dominic did not intend to hurt J.M., but rather the boys were friends and were merely fooling around. She contends that Dominic’s separation from his classmates for the purpose of taking his final exams constituted three days of in-school suspension. She contends further that those three days combined with Dominic’s subsequent five-day out-of-school suspension exceed the maximum penalty a principal is authorized to impose without a hearing under Education Law "3214. Petitioner asserts that Ms. Gaigal abrogated her due process rights because Ms. Gaigal denied her the opportunity to question the complaining witness, J.M., on June 27, and failed to provide a superintendent's hearing. Petitioner's request for interim relief was denied on August 16, 2000.

Respondent asserts that the petition must be dismissed because it was not notarized and fails to establish a clear legal right to the relief requested. Respondent contends that Ms. Gaigal properly determined not to allow petitioner's attorney, who accompanied her to the June 27 conference, to question J.M. since it was inappropriate to subject J.M. to cross-examination by counsel and Education Law "3214(3)(d) does not provide for the right to counsel at an informal conference. Respondent asserts that assigning Dominic to take his exams in an alternate location does not constitute an in-school suspension. Finally, respondent asserts that the imposition of a five-day suspension is proportionate to the offense and based on competent and substantial evidence.

I will first address the procedural issue of verification of the petition. Respondent asserts that the petition is not verified as required by 8 NYCRR "275.5, which provides that "all pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners . . .." In cases where petitioner is represented by counsel, counsel usually signs the petition and petitioner signs a notarized affidavit of verification. In this case, although she is represented by counsel, petitioner herself signed the petition on the last page and her signature was notarized on the same page. The following page contained a signed, but unnotarized, affidavit of verification. While it could be argued that the notary might have merely signed the wrong page, petitioner has failed to serve a reply or any other paper that would attempt to correct or otherwise explain the deficiency. Although petitioner's signature on the petition is notarized, merely notarizing a signature does not constitute verification of a pleading (Appeal of Shabazz, 38 Ed Dept Rep 481, Decision No. 14,076). It has been consistently held that when a petition is not properly verified, the appeal must be dismissed (Appeal of Shabazz, supra; Appeal of Frasier, 34 Ed Dept Rep 315, Decision No. 13,325).

The appeal must also be dismissed as moot. The penalty imposed was a five-day suspension to be served September 6, 7, 8, 11 and 12, 2000. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of J.Y. and E.Y., 40 Ed Dept Rep ___, Decision No. 14,403; Appeal of K.M., 39 id. 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). As the suspension has already been served, no meaningful relief can be granted and the appeal must be dismissed as moot.

In light of this disposition, I need not address petitioner's remaining arguments, which I find to be without merit.