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Decision No. 15,956

Appeal of NATALIA VILLANUEVA, on behalf of her sons ETHAN and BRIAN BAZAN, from action of the New York City Department of Education regarding educational placement.

Decision No. 15,956

(July 23, 2009)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner challenges the refusal of the New York City Department of Education (“respondent”) to re-admit her sons, Ethan and Brian, to P.S. 41.  The appeal must be dismissed.

In September 2008, based on petitioner’s representation that she was moving to an address within Community School District (“CSD”) 2, Ethan and Brian were admitted to P.S. 41.  After a residency investigation by respondent, and a response from petitioner, Ethan and Brian were removed from P.S. 41’s roster on December 12, 2008.

In January 2009, another residency investigation was conducted which established petitioner’s residency on Morton Avenue within CSD 2.  On January 16, 2009, petitioner requested that Ethan and Brian be readmitted to P.S. 41 but her request was denied because student enrollment was at capacity.  On January 20, 2009, petitioner enrolled her sons in P.S. 3.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 12, 2009.

Petitioner alleges that her sons are entitled to attend P.S. 41.  Respondent asserts that the appeal must be dismissed for improper service and for failure to state a claim upon which relief may be granted.

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).  Petitioner’s affidavit of service indicates that the petition was served on respondent by United Parcel Service and personal delivery to an unidentified receptionist.  Respondent denies that service was made upon a person authorized to accept service and asserts that it first learned of this appeal when contacted by my Office of Counsel.  When there is no proof that the individual who received the petition is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of J.L., 47 Ed Dept Rep 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).

In light of this disposition, I need not address the parties’ remaining contentions.  Although the petition must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission on her sons’ behalf at any time and to submit any documentary evidence for respondent’s consideration.