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Decision No. 15,715

Appeal of VADIM and ELVIRA TCHOUKANINE, on behalf of their son RUBEN, from action of the New York City Department of Education regarding residency.

Decision No. 15,715

(February 1, 2008)

Arthur Morrison, Esq., attorney for petitioners

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent” or “DOE”) that their son, Ruben, does not reside in the attendance zone for Public School (“P.S.”) 195.  The appeal must be dismissed.

Petitioners contend that they are divorced and that Ruben lives at West End Avenue in Brooklyn with his father.  They seek a determination that Ruben resides within the attendance zone for P.S. 195.

Respondent maintains that the petition should be dismissed as it was not properly served upon respondent.  Respondent further maintains that petitioners presented contradictory evidence of Ruben’s residency and therefore failed to demonstrate that he resides within the attendance zone for P.S. 195.

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]).  The New York City Law Department has been designated by respondent to accept service on its behalf.

Petitioner’s affidavit of service indicates that the petition was served on Arthur Forman, Principal of P.S. 195.  In its answer, respondent states that the DOE was not served and there is no indication that the appeal was otherwise delivered to or received by respondent.  Therefore, the appeal must be dismissed for improper service (Appeal of G.B., 46 Ed Dept Rep 181, Decision No. 15,476; Appeal of Harmon, 43 id. 478, Decision No. 15,057; Appeal of Lilker, 39 id. 614, Decision No. 14,328.)

In light of this disposition, I need not address the parties’ other contentions.  Although the petition must be dismissed on procedural grounds, I note that petitioners retain the right to reapply for admission on their son’s behalf at any time and to submit documentary evidence and other information for respondent’s consideration.