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Decision No. 15,946

Application of LISA A. KELTY for the removal of James Parla as Superintendent of the Island Trees Union Free School District.

Decision No. 15,946

(July 14, 2009)

Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP, attorneys for respondent, Richard Hamburger and Inna N. Cordiale, Esqs., of counsel

HUXLEY, Interim Commissioner.--Petitioner seeks the removal of James Parla (“respondent”) as Superintendent of the Island Trees Union Free School District pursuant to Education Law §306.  The application must be denied.

Petitioner alleges that between January 25 and June 10, 2008, the district made an unauthorized payment of $32,741.55 to an environmental consulting company, and that there is no public record of such payment in the minutes of the board of education. 

Petitioner also alleges that on November 29, 2004, the New York State Department of Environmental Conservation (“DEC”) issued a Notice of Violation addressed to respondent detailing a number of violations of statute and regulations at the district’s high school.  The Notice of Violation requested that respondent confirm in writing within 30 days that the cited violations had been addressed and/or corrected, with supporting documentation.  Petitioner further alleges that DEC issued a letter on October 23, 2008, citing certain items still outstanding from the 2004 Notice of Violation, and requesting documentation indicating correction of those outstanding items within 30 days. 

Petitioner alleges that the unauthorized payment made in 2008 and the failure to address all the violations cited in 2004 represent a failure of respondent’s “fiduciary responsibilities to safeguard the assets” of the district, and “a lack of oversight to protect the health and welfare of students attending Island Trees High School.” 

Respondent, in his answer and supporting affidavit, generally denies any wrongdoing, provides documentation in opposition to petitioner’s claims, and asserts several affirmative defenses, including untimeliness and defective service of the petition and notice of petition. 

The application must be dismissed for lack of jurisdiction based upon defective service of process.

The affidavit of Brian M. Kelty, sworn November 25, 2008, states that he made personal service of the notice of petition and petition on respondent on November 19, 2008.

Respondent disputes that service in a detailed affidavit sworn to December 29, 2008, in which he states that he was only handed an envelope containing documents and exhibits, which did not include either the notice of petition or petition.

Petitioner has not submitted a further affidavit of the process server, Brian M. Kelty, but instead states in her verified petition that respondent’s contention of defective service is untrue.  This statement, made by petitioner rather than by the process server, is obviously made without personal knowledge.

The affidavit of a process server attesting to delivery of a paper ordinary constitutes primafacie evidence of proper service (Bankers Trust Co. of California, N.A., v. Tsoukas, 303 AD2d 343). Where there is a sworn denial by respondent of receipt of proper service of the petition and notice of petition, however, the affidavit of service is rebutted and jurisdiction must be established by further evidence (Application of the Bd. of Educ. of the Ardsley UFSD, 38 Ed Dept Rep 221, Decision No. 14,019; seealsoBankers Trust Co. of California, N.A., v. Tsoukas, 303 AD2d 343).  The burden of proving service and the resulting existence of jurisdiction is always on the party asserting it (Matter of Griffin v. Griffin, 215 AD2d 386; Skyline Agency, Inc., v. Coppotelli, Inc., 117 AD2d 135; Bernardo v. Barrett, 87 AD2d 832, aff’d 57 NY2d 1006).  Petitioner has not carried her burden of proof in this instance.  The conclusory statement by petitioner in her reply, which is not based upon personal knowledge, is not sufficient to overcome respondent’s detailed denial of proper service, and I must conclude that jurisdiction has not been established.

In view of this disposition, I need not review or address the parties’ remaining contentions.