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Decision No. 15,033

Appeal of HARINDER K. ATWAL, on behalf of her niece MANJIT KAUR, from action of the Board of Education of the Hicksville Union Free School District regarding residency.


Decision No. 15,033


(March 5, 2004)

Khalid M. Azam, attorney for petitioner

G uercio & Guercio, attorneys for respondent, Gary L.             Steffanetta, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District ("respondent") that her niece, Manjit Kaur, is not a district resident.  The appeal must be dismissed.

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; Appeal of Recore, 42 Ed Dept Rep __, Decision No.  14,856; Appeal of Phillips, 40 id. 241, Decision No.  14,471).  Both parties agree that petitioner was notified of the challenged residency determination on or before December 5, 2003, but petitioner"s affidavit of service indicates that the petition was not served on the district clerk until January 12, 2004.

By letter dated January 6, 2004, petitioner advised my Office of Counsel that attempts to serve the superintendent on December 30 and 31, 2003, and January 2, 2004, were unsuccessful because of the holidays, and that an assistant to respondent"s superintendent was served with the petition on January 5, 2004.  However, when a school district is named as a party respondent, "275.8(a) of the Commissioner"s regulations requires that service 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. None of these persons were served, and there is no evidence that respondent designated the superintendent"s assistant to accept service.

Further, petitioner, who was represented by counsel, offers no excuse or reason for the delay beyond January 2, 2004, in effectuating proper service. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684; Application of T.D., 41 id. 157, Decision No. 14,646).  Here, I find no unusual circumstances sufficient to excuse the delay.  Therefore, the appeal must be dismissed as untimely.

While the appeal must be dismissed on procedural grounds, I note that petitioner retains the right to reapply to the district for admission on her niece"s behalf at any time, and upon sufficient proof of the child"s residency within the district, Manjit would be entitled to attend the district"s schools on a tuition-free basis (Appeal of Smith, 40 Ed Dept Rep 126, Decision No. 14,438).