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Decision No. 14,732

Appeal of DAISY DAVILA, on behalf of her son ANTHONY ROLLE-DAVILA, from action of the Board of Education of the Uniondale Union Free School District regarding transportation.


Decision No. 14,732

(May 31, 2002)

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Uniondale Union Free School District ("respondent") of her request for transportation to her son"s nonpublic school. The appeal must be dismissed.

On June 13, 2001, petitioner requested transportation for her son to the Portledge School, a nonpublic school in Locust Valley, New York, for the 2001-2002 school year. Respondent's transportation officials denied this request as untimely. By letter to respondent's district clerk dated September 7, 2001, petitioner explained the belated transportation request, including her son's acceptance to the nonpublic school with a full scholarship on May 31, 2001 and her lack of awareness of the deadline for such requests. Respondent discussed petitioner's request at its September 21, 2001 meeting and issued a final decision dated September 25, 2001 denying the request. Petitioner's request for reconsideration was subsequently denied on October 12, 2001.

On or about October 22, 2001, petitioner attempted to file a petition with my Office of Counsel. However, the petition was rejected for failure to effect personal service. On December 21, 2001, petitioner served a petition upon respondent. Petitioner"s request for interim relief was denied on January 7, 2002.

Petitioner asserts that her application for transportation was delayed because she was not sure if her son would be eligible to receive a scholarship at the nonpublic school until May 31, 2001. She further asserts that driving her son to school each day is a hardship. Respondent asserts that the appeal is untimely, that petitioner failed to submit a transportation request before the statutory deadline passed and that it would incur additional cost if it granted petitioner's request.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Further, a request for reconsideration does not toll the limitation period (Appeal of Bratge, 40 Ed Dept Rep 180, Decision No. 14,454; Appeal of Decker, 39 id. 62, Decision No. 14,173).

The record indicates that respondent"s final determination was made on September 25, 2001. Although petitioner attempted to file an appeal with my Office of Counsel on or about October 22, 2001, that petition was rejected for lack of personal service (see, 8 NYCRR "275.8). Moreover, petitioner did not serve the petition upon respondent until December 21, 2001, some 46 days after she was advised by my Office of Counsel of the defective petition. Petitioner offers no explanation for this delay. Accordingly, the appeal is dismissed as untimely.

The appeal must also be dismissed on the merits. Education Law "3635(2) requires that an application for transportation to a nonpublic school be submitted no later than the first day of April preceding the school year for which transportation is requested. The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of R.O., 40 Ed Dept Rep 137, Decision No. 14,441; Appeal of Gabay, 39 id. 492, Decision No. 14,290; Appeal of Mogilski, 37 id. 446, Decision No. 13,901). However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law "3635[2]; Appeal of R.O., supra; Appeal of Gabay, supra). In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request. The board"s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of R.O., supra; Appeal of Gabay, supra).

Petitioner decided to enroll her son at the Portledge School for the 2001-2002 school year on May 31, 2001. However, a belated decision to enroll a student in a private school is not a reasonable explanation for the late submission of a transportation request (Appeal of Gabay, supra; Appeal of Attubato, 38 Ed Dept Rep 511, Decision No. 14,082; Appeal of Amoroso, 37 id. 359, Decision No. 13,879).

Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of R.O., supra; Appeal of Tarricone, 38 Ed Dept Rep 623, Decision No. 14,105). Here, respondent contracts for the transportation of students to the Portledge School on a "per-student" cost of $438.50 per month. Consequently, I conclude that respondent has not abused its discretion in denying petitioner's late transportation request.