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Decision No. 16,282

Appeal of MARYANN MOCERINO, on behalf of her daughter LEANNA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,282

(August 17, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the refusal of the New York City Department of Education (“respondent”) to change a transportation pick-up point.  The appeal must be dismissed.

Petitioner resides approximately 4.5 miles from respondent’s Marsh Avenue Expeditionary Learning School where her daughter attends school.  Respondent provides “yellow bus” transportation for Leanna to and from school and designated a bus stop approximately 0.15 miles from her home.  On November 4, 2010, petitioner requested that the bus stop be moved to a different location due to alleged hazardous conditions.  By letter dated November 24, 2010, petitioner’s request was denied.  This appeal ensued.

Petitioner claims that the current bus stop is not safe because of poor visibility, no sidewalks and heavy traffic.  Petitioner claims that her daughter is the last student to be dropped off and, thus, no one would be inconvenienced by changing the bus stop location.

Respondent claims that its determination regarding the location of the bus stop is within its discretion, is proper and not arbitrary and capricious.  Respondent also maintains that petitioner failed to establish the existence of a hazardous condition that would warrant a change in the bus stop location.

A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789).  In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789).  The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc 2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Girsdansky, 46 Ed Dept Rep 105, Decision No. 15,455).  Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point.  It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

Here, the record indicates that respondent carefully considered petitioner’s request.  Its investigation included an examination of traffic patterns in the area, the width of streets, the existence of any impassable areas, as well as other factors.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner has not met either burden.  Therefore, while I am sympathetic to petitioner’s concerns, I cannot conclude on this record that respondent’s determination was arbitrary, capricious, unreasonable or an abuse of discretion.

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