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Decision No. 15,685

Appeal of MICHELLE LIGOWSKI, on behalf of her daughter LAINIE, from action of the Board of Education of the New Hyde Park-Garden City Park Union Free School District regarding transportation.   

Decision No. 15,685

(November 13, 2007)

Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, attorneys for respondent, Richard J. Nicolello Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (“respondent”) denying her daughter, Lainie, transportation to a nonpublic school for the 2007-2008 school year.  The appeal must be dismissed.

By letter dated June 5, 2007, respondent’s superintendent denied petitioner’s request for transportation for Lainie to her nonpublic school for the 2007-2008 school year because it was not submitted by the April 1 deadline for transportation requests.  On June 12, 2007, respondent affirmed the superintendent’s determination.  Respondent’s letter explained that the district would incur an additional expense if the request were granted.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 20, 2007.

Petitioner admits that she mailed her transportation request on or about April 15, 2007, but maintains that Lainie is entitled to transportation because petitioner has established a reasonable explanation for her late submission.

Respondent contends that petitioner’s request for transportation was untimely and, therefore, its decision to deny petitioner’s request was not arbitrary or capricious.  Respondent further alleges that it would incur additional costs to transport Lainie to the nonpublic school.

Education Law §3635(2) requires that an application for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically  (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373; Decision No. 14,884; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Davila, 41 id. 419, Decision No. 14,732).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744.)

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Petitioner admits that she did not submit a timely request for transportation.  Her excuse is that she has health problems which affect her memory, and her ability to carryout the activities of daily living.  Petitioner claims that, at the time the transportation application was due, she was under additional stress that exacerbated her memory loss, causing her to misplace and file the application late.  On the record before me, I cannot conclude that petitioner’s health issues constitute a legally sufficient excuse for her delay.  The record indicates that petitioner has received medical care for health problems since December 2002, but nowhere in the record does petitioner submit evidence that she was incapacitated immediately prior to the April 1 deadline.  Rather, it appears that the late filing was an “accident” caused by forgetfulness.  While I am sympathetic to petitioner, missing the transportation deadline for the reasons petitioner states is not a basis under the law for excusing her failure to timely request transportation (Appeal of Madeleine Abbadessa 47 Ed Dept Rep __, Decision No. 15,657; Appeal of Haiimpour, 47 id. __, Decision No. 15,621; Appeal of Vigliotta, 40 id. 344, Decision No. 14,493).

Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Cusumano, 42 id. 309, Decision No. 14,864; Appeal of Gal, 42 id. 170, Decision No. 14,809).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (seeAppeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373, Decision No. 14,884).

In its June 12, 2007 letter denying petitioner’s transportation request, respondent stated that providing transportation for Lainie would result in an additional cost of approximately $9,000 for the 2007-2008 school year.  Moreover, together with respondent’s verified answer, it submits an affidavit of its Director of Facilities, Operations and Transportation calculating the exact cost of Lainie’s transportation at $9,232.30.  Petitioner has failed to refute respondent’s contentions.  Given these facts, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request (seeAppeal Of Mian A. Ghaffar, 46 Ed Dept Rep ____, Decision No. 15,524; Appeal of Vasilakos, 46 id. 129, Decision No. 15,463; Appeal of S.M., 44 id. 391, Decision No. 15,208).

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