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Decision No. 15,076

Appeal of JUAN LOPEZ, on behalf of his nephew GIANCARLO HERNANDEZ, from action of the Board of Education of the Hicksville Union Free School District regarding residency.



(July 2, 2004)


Guercio & 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 his nephew, Giancarlo, is not a district resident.  The appeal must be dismissed.

In 2001, Giancarlo moved to his uncle"s home and attended school in respondent"s district.  In or about November 2003, the district received information that Giancarlo was not a district resident.  Respondent"s residency officer sent a letter to Giancarlo"s mother, dated November 7, 2003, giving her an opportunity to submit proof of Giancarlo"s residency within the district. On November 14, 2003, the officer held a residency hearing at which Giancarlo"s mother and aunt were present.  The residency officer concluded that Giancarlo was not a district resident and this appeal ensued.  Petitioner"s request for interim relief was denied on January 9, 2004.

     Petitioner contends that he is Giancarlo"s guardian and that Giancarlo is entitled to attend respondent"s schools tuition-free.  Respondent contends that the appeal must be dismissed because, among other things, the notice of petition and petition were never served on respondent.

     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 party 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. 

     Respondent contends that the petition was not personally served in accordance with "275.8.  The affidavit of service submitted by petitioner is defective in that, with the exception of the notary"s signature, it is blank.    Therefore, I must dismiss the appeal for lack of personal service upon respondent (Appeal of Grant, 42 Ed Dept Rep 184, Decision No. 14,816; Appeal of K.R., 40 id. 189, Decision No. 14,457; Appeal of Bd. of Educ. of the Sachem Cent. School Dist., 31 id. 277, Decision No. 12,641).