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Decision No. 15,018

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Bethpage Union Free School District regarding residency.


Decision No. 15,018


(January 16, 2004)


Jaspan Schlesinger Hoffman, LLP, attorneys for respondent, Laura J. Granelli, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bethpage Union Free School District ("respondent") that his son is not a district resident.  The appeal must be dismissed.

Petitioner and his wife own a home in the Farmingdale Union Free School District ("Farmingdale") and petitioner"s son, along with his siblings, attended Farmingdale"s schools until the spring of 2002.   On April 24, 2002, petitioner requested that his son be admitted to respondent"s schools, asserting that he was renting an apartment in respondent"s district and that his son resided with him.  In December 2002, respondent"s administrators began to suspect that petitioner"s son was not a district resident, but actually resided with his mother in Farmingdale.  An investigation ensued.   

Petitioner"s son continued to attend respondent"s schools until on or about January 10, 2003 when he enrolled in a private school.  Thereafter, respondent continued to provide services to petitioner"s son in accordance with his Individualized Education Program ("IEP"). 

By letter dated March 11, 2003, respondent"s Assistant Superintendent for Instruction informed petitioner and his wife that the district had reason to believe their son was not a resident and that it would not fund education or related services after March 25, 2003.  The letter also advised petitioner that he could request a conference and submit information about his son"s right to attend respondent"s schools. 

By letter dated March 21, 2003, petitioner notified respondent"s superintendent that he was removing his son from respondent"s district.  Petitioner then re-enrolled him in Farmingdale"s schools.  Respondent"s designee conducted a residency hearing on April 10 and May 8, 2003.  In a decision dated May 27, 2003, the hearing officer concluded that petitioner"s son "was not a resident of [respondent"s] district " " This appeal ensued.  It is uncontested that petitioner"s son now lives with his mother and siblings in Farmingdale.

Petitioner requests a determination that his son was a resident of respondent"s district for the period of April 24, 2002 until March 24, 2003.  Petitioner contends that respondent did not comply with the Commissioner"s regulations because it did not give him notice of his right to submit information prior to the final residency determination and because the notice lacked specificity.  Petitioner further alleges that respondent"s determination is arbitrary, based on false and/or incomplete information and made in retaliation for petitioner"s repeated requests for impartial hearings regarding his son"s IEP. 

Respondent asserts that the appeal must be dismissed because petitioner failed to properly serve respondent and because it is moot.  Respondent contends that it complied with applicable law and regulations and that its determination was not arbitrary or capricious.

     I must first address several procedural issues.  Petitioner submitted a reply containing new allegations, supporting allegations made in the petition and attaching exhibits that should have been included with the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Crosier, 42 Ed Dept Rep ___, Decision No. 14,835; Appeal of a Student with a Disability and His Sister, 42 id. __, Decision No. 14,821).  Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer

     The appeal must be dismissed because respondent was not properly served with the petition.  Section 275.8(a) of the Commissioner"s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR "275.8[a]).  The record indicates that petitioner served the petition on respondent"s Assistant Superintendent for Instruction, who is not authorized to accept such service and who states that he did not represent himself to be so authorized.  Therefore, the appeal must be dismissed for lack of proper service.

     The appeal must also be dismissed as moot.  The Commissioner 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 Kennedy, 42 Ed Dept Rep ___, Decision No. 14,896; Appeal of Cox, 41 id. 43, Decision No. 14,609; Appeal of Correale, 40 id. 15, Decision No. 14,405).  It is undisputed that petitioner"s son no longer resides in respondent"s district.  Therefore the appeal is moot.

     In light of this disposition, I need not address the parties" remaining contentions.