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Decision No. 15,037

Appeal of SOPHIA COOK, on behalf of her sister MARIA S. LICATA, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 15,037 

March 17, 2004


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Natalie J. Marshall, Esq., of counsel  

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District ("respondent") that her sister, Maria S. Licata ("Maria"), is not a district resident.  The appeal must be dismissed.

According to petitioner, Maria began living with her in respondent"s district in June of 2003.  On June 23, 2003, Maria made a request for admission to respondent"s schools, and respondent"s designee held a residency hearing to determine Maria"s eligibility.  By letter dated June 24, 2003, respondent"s designee denied Maria admission to respondent"s schools because Maria"s father had not given permanent and total care, custody and control to petitioner.  This appeal ensued.  Petitioner"s request for interim relief was denied on October 6, 2003.

The appeal must be dismissed as untimely.   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 Sperduti, 42 id. ___, Decision No. 14,848).  Petitioner was informed of respondent"s determination on June 24, 2003.  Petitioner served her petition on September 25, 2003, beyond the 30-day period.

In an unsigned statement, petitioner alleges that she was unable to obtain appeal forms electronically and that the phone number provided by the district was not in working order.  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 sister"s behalf at any time, and upon sufficient proof of the child"s residency within the district, Maria 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).