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Decision No. 15,941

Appeal of P.B. and T.B., on behalf of their daughter N.B., from action of the Board of Education of the Longwood Central School District regarding residency.

Decision No. 15,941

(July 8, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Longwood Central School District (“respondent”) that their daughter, N.B., is not a district resident.  The appeal must be dismissed.

On or about January 27, 2009, the district’s assistant superintendent for student and community services (“assistant superintendent”) conducted a telephone conference with petitioners during which petitioners admitted that they were living outside the district.  By letter that same day to the principal of Ridge Elementary School (“principal”) where N.B. attended fourth grade, petitioners requested that the principal permit N.B. to complete the 2008-2009 school year.  Petitioners stated that circumstances beyond their control had forced them to move from their previous residence within the district, but that they intended to return to the district as soon as possible.

By letter to petitioners the next day, the assistant superintendent confirmed the district’s decision that N.B. was not a district resident and therefore would be excluded from the district effective February 3, 2009.  This appeal ensued.  Petitioners’ request for interim relief was granted on March 26, 2009.

Petitioners admit that they reside outside the district, but state they intend to reside there only temporarily for seven months.  They request that respondent alleviate any further stress that the sudden relocation, in conjunction with other extenuating family circumstances, has caused for N.B. by permitting her to complete her elementary career at Ridge Elementary through the 2008-2009 school year.

Respondent contends that the petition fails to state a claim upon which relief may be granted.  Respondent asserts that petitioners admit they reside outside the district and therefore N.B. is not entitled to attend school in the district.  In addition, respondent contends that the petition must be dismissed as untimely and for improper service.

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 assistant superintendent notified petitioners of the district’s residency determination on January 28, 2009.  On February 25, 2009, my Office of Counsel received a petition from petitioners which was returned to them because it did not comply with the Commissioner’s regulations in several respects.  Thereafter, petitioners served a revised petition on the district on March 19, 2009, more than 30 days after the district’s final determination of January 28, 2009.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed for 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]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Petitioners failed to provide an affidavit of service and merely indicate that they mailed copies of the petition to the superintendent, assistant superintendent and principal via certified mail.  Since there is no indication that the appeal was otherwise delivered to or received by respondent in accordance with §275.8 of the Commissioner’s regulations, the appeal must be dismissed for improper service (Appeal of Tchoukanine, 47 Ed Dept Rep 334, Decision No. 15,715; Appeal of G.B., 46 id. 181, Decision No. 15,476; Appeal of Harmon, 43 id. 478, Decision No. 15,057).

Finally, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioners only requested that N.B. be allowed to attend the district’s schools for the remainder of the 2008-2009 school year.  Since that school year has ended, the appeal is moot.

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