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Decision No. 15,939

Appeal of CARL PETERSON, on behalf of his sons BRANDON and JULIAN, from action of the Williamsville Central School District regarding residency.

Decision No. 15,939

(June 29, 2009)

Kathleen E. Gaines, Esq. attorney for petitioner

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that his sons, Brandon and Julian, are not district residents.  The appeal must be dismissed.

Petitioner seeks to overturn respondent’s residency determination made in November 2008.  Petitioner’s request for interim relief was granted on December 18, 2008.

Respondent maintains that its determination was appropriate and argues that the appeal must be dismissed for lack of proper 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]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).

According to the affidavit of service of petitioner’s process server, she made service of the petition upon Brenda Franks, Assistant to the Superintendent, on December 2, 2008.  Respondent states that Ms. Franks has not been designated by respondent to accept service on its behalf.  Petitioner did not submit a reply and does not refute the statement that Ms. Franks is not authorized to accept service on behalf of respondent.

When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of DeMarco, 48 Ed Dept Rep ____, Decision No. 15,850; Appeal of Baker, 47 id. 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654).

In addition, the appeal must be dismissed because petitioner failed to serve a notice of petition on respondent.  It is the notice of petition that alerts a party to the fact that he or she is required to appear in the appeal, and to answer the objections contained in the petition (8 NYCRR §275.11; Appeal of Hauk, 44 Ed Dept Rep 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048).  Failure to include a notice of petition that contains the language required by §275.11 does not secure jurisdiction over the intended respondent (see, Appeal of Khalid, 40 Ed Dept Rep 621, Decision No. 14,570).

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