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Decision No. 15,359

Appeal of M.E. and J.G.E., on behalf of their son J.E., from action of the New York City Department of Education, Susan J. Intorre, Neil Eidelberg and Richard Tighe, regarding student discipline.

Decision No. 15,359

(February 9, 2006)

Figeroux & Associates, attorneys for petitioners, Olabanji Elegbe, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Joshua C. Chao, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determinations of the New York City Department of Education ("department") to suspend their son, J.E., from school. The appeal must be dismissed.

J.E. was suspended in May 2004 and August 2004 for allegedly attempting to strike another student. J.E. was also suspended in December 2004 and January 2005 for allegedly taking school property.

Petitioners contend, among other things, that respondents denied J.E. his right to due process and ask that J.E.'s records be expunged of all references to the four suspensions noted above and any suspensions that occurred prior thereto. Respondents argue, among other things, that the appeal is untimely.

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 any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).

Petitioners were notified by letters dated May 17, 2004; August 10, 2004; December 16, 2004 and January 13, 2005 of the suspensions determinations at issue in the instant appeal. The record reflects that the petition was not properly served on the department until March 17, 2005, well beyond the 30-day period for each of the four suspension determinations at issue. It appears that petitioners may have confused the process to appeal a superintendent's decision to the Chancellor with the process required in an appeal to the Commissioner. Petitioners provided no other reason for their delay and did not submit a reply to respondent's answer. Based on the record before me, I find that petitioners have not established good cause for their delay, and accordingly the appeal must be dismissed as untimely.

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