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Decision No. 16,117

Appeal of COREY TERRY, on behalf of his daughter COURTNEY, and ALICIA HYNDMAN, on behalf of her daughter NIA HYNDMAN-LANIER, from action of the New York City Department of Education regarding school utilization.

Decision No. 16,117

(August 4, 2010)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, John Buhta, Esq., of counsel

STEINER, Commissioner.--Petitioners challenge a proposal of the New York City Department of Education (“respondent”) relating to the co-location of two public schools in a public school building.  The appeal must be dismissed.

Petitioners are parents of children who attend Springfield Gardens Intermediate School (“I.S. 59”) in Queens, New York.  I.S. 59 is a public school serving students in grades six through eight that is located in the Q059 building in Community School District 29 (“Q059 building” or “the building”).  Respondent proposed co-locating a new public school, Eagle Academy School for Young Men III (“Eagle III”), with I.S. 59 in the Q059 building, beginning in the 2010-2011 school year.  Eagle III is expected to be an all-male school that would eventually serve students in grades six through twelve, with grade six opening in the 2010-2011 school year.  Under respondent’s proposal, I.S. 59 would be required to relinquish classroom space to Eagle III.

On January 8, 2010, respondent issued an Educational Impact Statement (“EIS”) pursuant to Education Law §2590-h(2-a)(b) regarding its proposal to co-locate Eagle III with I.S. 59.  On February 9, 2010, a hearing on this proposal was held, and on February 23, 2010, respondent issued a revised EIS.  On February 24, 2010, respondent’s proposal was submitted to the Panel for Educational Policy (“PEP”) for approval, but less than a majority of the PEP’s voting membership voted for the proposal and less than a majority of the PEP’s voting membership voted against it.  Thereafter, the proposal was re-submitted to the PEP on March 23, 2010 when it was approved.  This appeal ensued.  On May 7, 2010, petitioners’ request for a stay was denied.

Petitioners challenge the sufficiency and accuracy of the EIS.  They also assert that respondent failed to comply with the requirements of Education Law §2590-h(2-a) and that the PEP’s March 23, 2010 vote was improper.  In addition, petitioners contend that the loss of space to Eagle III will have “many deleterious effects” on I.S. 59.  Petitioners seek annulment of the March 23, 2010 vote to co-locate Eagle III with I.S. 59, and an order directing respondent to hold another public hearing and make a “full analysis” of all alternative suggestions to the current proposal.

Respondent contends that it has complied with the requirements of Education Law §2590-h(2-a), that the EIS is sufficient and that the March 23, 2010 vote was, in all respects, proper.  Respondent maintains that the petition was not properly served and, therefore, must be dismissed.  Respondent also argues that, insofar as the appeal was not properly initiated, it is untimely.

The appeal must be dismissed because of 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).  Respondent has designated the New York City Law Department to accept service on its behalf.

According to the affidavits of service submitted by petitioners, a copy of the petition was left at the home of Dolores Knight, secretary to the superintendent of Community School District 29, and a copy was served on Ron Barfield, District Family Advocate for Community School District 29.  Respondent asserts that neither individual is authorized to accept service on its behalf.  In their reply, petitioners do not address respondent’s statement with respect to Mr. Barfield and, with respect to Ms. Knight, they simply “submit” that she is an employee of the “DOE’s superintendent’s office for School District 29.”  This is insufficient to contradict respondent’s assertion.

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 Villanueva, 49 Ed Dept Rep 54, Decision No. 15,956; Appeal of DeMarco, 48 id. 252, Decision No. 15,850; Appeal of Baker, 47 id. 280, Decision No. 15,696).

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