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Decision No. 16,187

Appeal of SO HUNG YAN, on behalf of her son PUI LAM HE, from action of the New York City Department of Education regarding transportation.

Decision No. 16,187

(January 10, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Marilyn Richter, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) denying her son, Pui Lam, certain transportation services for the 2010-2011 school year.  The appeal is dismissed.

Pui Lam attends the P.S. 69 Gifted and Talented Program within respondent's school district.  Petitioner filed a request seeking school bus transportation (“yellow bus service”), which respondent denied on August 8, 2010 in accordance with Chancellor’s regulation A-801 and, instead, offered a full-fare MetroCard for access to public bus service.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 6, 2010.

Petitioner asserts that access to public bus service is too hazardous for Pui Lam and he, therefore, is entitled to a variance for yellow bus service. Respondent maintains that its denial of petitioner’s request is proper. In addition, respondent asserts that the appeal is untimely and petitioner failed to effect proper service.

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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Petitioner initially filed a petition that included an affidavit of service indicating service by mail upon me.  My Office of Counsel returned the petition noting the lack of proper service upon respondent.  Nevertheless, petitioner resubmitted the petition on September 23, 2010, and again included an affidavit of service indicating service by mail upon me.  Respondent denies that service was made upon any person authorized to accept service and asserts that it first learned of the appeal through communication with my Office of Counsel.  Because the petition was never properly served upon respondent in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed (seeAppeal of Villanueva, 49 Ed Dept Rep 54, Decision No. 15,956; Appeal of Peterson, 48 id. 530, Decision No. 15,939; Appeal of Costanzo, 48 id. 289, Decision No. 15,860).

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