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Decision No. 16,340

Appeal of VLADISLAVA LITVAK-STAROSELSKY, on behalf of her son EUGENE, from action of the New York City Department of Education regarding transportation.

Decision No. 16,340

(March 29, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her request for transportation.  The appeal must be dismissed.

Petitioner’s son is currently in the fifth grade at P.S. 069 (“school”) where he has been enrolled since first grade.  Until the 2010-2011 school year, Eugene qualified for school bus transportation to the school.  It appears that prior to the end of the 2009-2010 school year, petitioner was advised that, pursuant to respondent’s transportation policy, Eugene would no longer qualify for school bus transportation for the 2010-2011 school year, but was instead eligible for free transportation by public transit.  On June 28, 2010, petitioner submitted a variance request for school bus transportation for that school year to respondent’s Office of Pupil Transportation (“OPT”).  By letter dated August 26, 2010, OPT denied petitioner’s request and advised petitioner of her right to appeal to the Commissioner of Education.

By letter dated November 15, 2010, petitioner wrote to the Chancellor of the New York City Department of Education (“Chancellor”) complaining about OPT’s decision.  The record does not contain a response to this writing.  This appeal ensued.

Petitioner seeks school bus transportation for Eugene to and from P.S. 069.  She argues that it is unsafe for Eugene to take public transportation and that the lack of school bus transportation has caused financial hardship for her family.

Respondent contends that the appeal is untimely, moot and that its determination is neither arbitrary nor capricious. 

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  OPT denied petitioner’s variance request for school bus transportation on August 26, 2010.  The denial letter informed petitioner of her right to appeal the determination to the Commissioner of Education and specifically noted that such an appeal must be commenced within 30 days.  Petitioner took no action until almost three months later, on November 15, 2010, when she wrote to the Chancellor.  Petitioner waited almost one year from the date of that writing to commence this appeal on October 11, 2011.  Petitioner requests that the delay in bringing the appeal be excused because she obtained new information regarding other students whom she claims are receiving school bus transportation.   However, the record indicates that petitioner was aware of that information in November 2010.  On this record, I find that the appeal is untimely and that petitioner has offered no good cause for the delay.

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Petitioner is challenging respondent’s denial of her various requests for school bus transportation for the 2010-2011 school year.  As noted above, petitioner did not commence this appeal until October 2011, subsequent to the conclusion of the relevant school year.  Respondent asserts that transportation variance requests are submitted and decided annually and that petitioner did not submit such a request for the 2011-2012 school year.  Petitioner has not submitted any reply to contradict respondent’s assertions.  In view of the fact that the 2010-2011 school year, which is the subject of the transportation variance denial at issue, concluded prior to commencement of this appeal, the matter must be dismissed as moot.

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