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Decision No. 16,208

Appeal of JOHN D. McCARTHY, on behalf of his daughter ALEXA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,208

(March 24, 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 his daughter, Alexa, certain transportation services for the 2010-2011 school year.  The appeal must be dismissed.

Alexa attends P.S. 8 within respondent's school district.  Petitioner filed a request seeking school bus transportation (“yellow bus service”) for Alexa, which respondent denied on October 26, 2010 in accordance with Chancellor’s regulation A-801 and, instead, offered a half-fare MetroCard for access to public bus service.  This appeal ensued.

Petitioner asserts that access to public bus service is too hazardous for Alexa and she, therefore, is entitled to a variance for yellow bus service.  Respondent maintains that its denial of petitioner’s request was 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 did not include a notice (8 NYCRR §275.11) or an affidavit of personal service (8 NYCRR §275.8).  My Office of Counsel returned the petition noting the lack of proper notice and proof of service upon respondent.  Petitioner resubmitted the petition on November 19, 2010.  However, the submission included an affidavit of service indicating only that the petition was served by mail upon the State Education Department.  Petitioner has provided no evidence that the petition was served upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  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 on 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.