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Decision No. 15,714

Appeal of JUDITH KELLY, on behalf of her daughter ANNA-KAY GIBSON, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 15,714

(January 17, 2008)

Kehl, Katzive & Simon, LLP, attorney for respondent, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her daughter, Anna-Kay, is not a district resident.  The appeal must be dismissed.

Petitioner contends that she resides with her daughter within respondent’s district.  Petitioner seeks a determination that Anna-Kay is a district resident.

Respondent maintains that the petition should be dismissed as it was not properly served upon respondent.  Respondent further maintains that its decision was not arbitrary or capricious.

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]).

Petitioner’s affidavit of service indicates that the petition was served on Jackie Nielsen.  In its answer, respondent states that Ms. Nielsen is a clerical assistant to the Clerk and Secretary of the School District and that no service was made on anyone authorized to accept service in accordance with §275.8 of the Commissioner’s regulations.  Since the petition was not personally served on the district clerk, a member of the board of education, the superintendent or a superintendent’s designee, there was no valid service of process and I lack jurisdiction over this appeal (8 NYCRR §215.8[a]; Appeal of A.P., 47 Ed Dept Rep ___, Decision No. 15,675; Appeal of McNeil, 47 id. ___, Decision No. 15,671).

Although the petition must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission to the district on her daughter’s behalf at any time and to submit documentary evidence and other information for respondent’s consideration.