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Decision No. 16,363

Appeal of MARIE COLLETTA, on behalf of her daughter SAMANTHA TERZULLI, from action of the New York City Department of Education regarding transportation.

Decision No. 16,363

(June 28, 2012)

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

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

Petitioner and her daughter reside in Staten Island, within respondent’s Community School District 31.  During the 2010-2011 school year, Samantha attended seventh grade at a nonpublic school (“school”) in Staten Island.

Respondent’s transportation policy does not provide for school bus (“yellow bus”) service to students in grades seven through 12.  Instead, those students are eligible to receive a full-fare MetroCard for public transportation if they reside 1.5 or more miles from the school they attend or a half-fare MetroCard if they reside at least one-half mile but less than 1.5 miles from school.  Respondent claims, and petitioner does not dispute, that petitioner resides 1.4 miles away from the school.

In July 2010, pursuant to respondent’s transportation policy, petitioner applied for a variance to obtain yellow bus service for Samantha based on “[h]azardous conditions along the route to school, bus, or subway station” and “[u]navailable/inaccessible public transportation.”

By letter dated August 26, 2010, respondent’s Office of Pupil Transportation (“OPT”) denied petitioner’s variance request based on Samantha’s grade and the distance between her residence and the school.[1] This appeal ensued.

By letter dated September 24, 2010, subsequent to the commencement of this appeal, OPT informed petitioner that “even though [Samantha] is ineligible [for a variance] by grade and distance, hazardous conditions have been found due to lack of sidewalks” and that Samantha was thus eligible to receive public transportation via a full-fare MetroCard.

Petitioner argues that Samantha is entitled to a variance for yellow bus service for the 2010-2011 school year, alleging, among other things, that portions of Samantha’s route to school are “unsafe” due to a lack of sidewalks and that her neighborhood “does not have access to public transportation.”  Petitioner also contends that “the travel time using public transportation is three times greater than that of a yellow school bus.”  Petitioner further claims that respondent granted such a variance for the 2010-2011 school year to another seventh-grade student at the school. 

Respondent argues that the appeal must be dismissed as moot and contends that its decision was not arbitrary and capricious and was in all respects proper.

I must first address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent argues that the appeal must be dismissed as moot because its September 24, 2010 decision “superseded” its August 26, 2010 decision to deny petitioner’s July 2010 variance request.  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).  In her reply, petitioner objects to respondent’s September 24 decision, which occurred after she commenced this appeal, and maintains that Samantha is entitled to yellow bus service, rather than public transportation, for the 2010-2011 school year.  Consequently, respondent’s September 24 decision did not, itself, render the matter moot.

However, I note that the issues raised in this appeal relate to petitioner’s request for a variance to receive yellow bus service for the 2010-2011 school year, which has concluded.  Moreover, the record indicates that variance requests are submitted annually. Consequently, on that basis, the appeal is moot (seeAppeal of Litvak-Staroselsky, 51 Ed Dept Rep, Decision No. 16,340).

Although the appeal must be dismissed as moot, I note that legislation, as proposed in A.8683-B/S.6027-B, has been signed into law as Chapter 42 of the Laws of 2012 that would permit respondent to provide yellow bus service to seventh and eighth-grade students in the future.

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



[1] In Ignizio, et al. v. City of New York, et al., 29 Misc3d 1231(A), 2010 NY Slip Op 52106(U) (December 6, 2010), a decision issued during the pendency of this appeal, Supreme Court, Richmond County found that the New York City Department of Education’s (“NYCDOE”) decision to eliminate funding for variances previously available providing yellow bus transportation for seventh and eighth-grade students in Staten Island and Breezy Point was arbitrary and capricious.  On June 28, 2011, the Appellate Division, Second Department reversed, stating that NYCDOE’s decision to eliminate funding for such variances had a rational basis and was not arbitrary and capricious (Ignizio, et al., v. City of New York, et al., 85 AD3d 1171).