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Decision No. 14,982

Reopening of the appeal of JENNIFER CALABRESE, on behalf of CHRISTOPHER SANTUCCI, from action of the Board of Education of the Malverne Union Free School District regarding transportation.



(November 14, 2003)


Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel


MILLS, Commissioner.--Pursuant to "276.8(c) of the Regulations of the Commissioner of Education, I hereby determine that Decision No. 14,933, dated August 19, 2003, must be reopened in the interests of justice.  The original decision to sustain the appeal, however, remains unchanged.

In the original appeal, Acting Commissioner Cate found that respondent failed to serve a timely answer or offer an excuse for its late submission.  Accordingly, petitioner"s factual allegations were deemed to be true, and the appeal was sustained without considering the late answer or reply thereto.

     It has recently been brought to my attention that by letter dated June 9, 2003, my Office of Counsel in fact accepted respondent"s late answer.  This letter evidently was misfiled and, therefore, was not considered in the original appeal.  Accordingly, I will now reopen the appeal to consider the answer and reply thereto.

     Petitioner asserts that on March 31, 2003, her husband mailed a written nonpublic school transportation request for the 2003-2004 school year to respondent by depositing the request in a United States post office mailbox.  Petitioner further asserts that any delay in postmarking or receipt was due to post office error. 

In its answer, respondent submits a copy of the envelope that contained the request with a postmark of April 2nd and states that the application was not received until April 3, 2003.  Respondent further states that its policy is to deny transportation requests that are postmarked or received after April 1st, unless a reasonable explanation is given and/or there is no additional cost to the district.

In her reply, petitioner submits a sworn affidavit from her husband attesting to the March 31 mailing date.

Pursuant to Education Law "3635(2), a request for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested (Appeal of Aguanno, 41 Ed Dept Rep 326, Decision No. 14,700; Appeal of Sarant, 41 id. 70, Decision No. 14,617; Appeal of Joanne M., 40 id. 686, Decision No. 14,584).  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 Sarant, supra; Appeal of Joanne M., supra).  The issue in this appeal is whether petitioner submitted a timely request.

In a prior decision I held that a request was submitted timely when mailed by the April 1st deadline (Appeal of Hendrick, 37 Ed Dept Rep 188, Decision No. 13,838; SeealsoMatter of Kahane, 9 id. 68, Decision No. 8,062).  Thus, the fact that the application arrived at the school district shortly after April 1 is not conclusive.  Furthermore, the fact that the application was not postmarked until April 2nd is not necessarily inconsistent with petitioner"s husband"s sworn affidavit that he placed it in a mailbox on March 31, 2003.

Therefore, on the record before me, I conclude that petitioner"s transportation request was timely made and petitioner"s son is entitled to transportation by respondent to the nonpublic school described within such request for the 2003-2004 school year.


IT IS ORDERED that Decision No. 14,933 is reopened and modified to the extent indicated above.