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Decision No. 15,633

Appeal of CARLOS VALLEJO, on behalf of his children BRYAN and MARILYN, from action of the Board of Education of the Pleasantville Union Free School District regarding residency.

Decision No. 15,633

(August 15, 2007)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

     MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pleasantville Union Free School District (“respondent”) that his children, Bryan and Marilyn,  are not district residents.  The appeal must be dismissed.

     Petitioner contends that he and his children reside within respondent’s district and that any absence of his children from the district was short-term, due to marital difficulties.  Petitioner seeks a determination that Bryan and Marilyn are district residents.

     Respondent maintains that the petition should be dismissed as it was not properly served upon respondent.

The appeal must be dismissed because of improper service.  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]).  In this case, the record shows that the petition was served on the Human Resource Coordinator for the district, who was not authorized to accept service.  Therefore, the appeal must be dismissed (Appeal of Lilker, 39 Ed Dept Rep 614, Decision No. 14,328).

     Although the petition must be dismissed on procedural grounds, I note that petitioner has the right to reapply to the district for admission on his children’s behalf (Appeal of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of Holder, 44 id. 32, Decision No. 15,088).