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Decision No. 15,872

Appeal of GERT WERNER BRUNING and DIANE COBURN-BRUNING, on behalf of their children TROY and CLAY, from action of the Board of Education of the Tarrytown Union Free School District regarding the distribution of textbooks.

Decision No. 15,872

(February 19, 2009)

Leonard A. Sclafani, P.C., attorneys for petitioners, Leonard A. Sclafani, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge actions of the Board of Education of the Tarrytown Union Free School District (“respondent”) pertaining to the loan of textbooks.  The appeal must be dismissed.

Petitioners and their children reside in respondent’s district.  Petitioners’ children attend Hackley School (“Hackley”), a nonpublic school.  By letters dated June 1, 2008, petitioners requested the loan of textbooks for their children for the 2008-2009 school year.

By letter dated July 21, 2008, respondent’s business manager informed petitioners that their request was denied.  Petitioners purchased the books required by Hackley.  This appeal ensued.

Petitioners allege that respondent’s procedures for and method of distributing textbooks to nonpublic school students is not equitable and violates Education Law §701(4) and the New York State Textbook Loan Program.  Respondent contends that the appeal is untimely and that it is currently reviewing its textbook loan policies and procedures.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).  The record indicates that petitioners’ request for textbooks was denied by letter dated July 21, 2008.  However, there is no evidence in the record to indicate when petitioners actually received the determination.  As such, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be July 26, 2008.  Petitioners commenced their appeal on September 3, 2008 -- more than 30 days later, and petitioners did not provide any excuse for the delay.  Consequently, I must dismiss the appeal as untimely.

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