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Decision No. 16,374

Appeal of LORI HERNANDEZ, on behalf of her son SHAY, from action of the New York City Department of Education regarding transportation.

Decision No. 16,374

(July 20, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Samantha Springer, 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 son reside in Staten Island, within respondent’s Community School District 31 (“CSD 31”).  During the 2009-2010 school year, Shay attended third grade in a gifted and talented program at P.S. 50 and was provided with transportation through school bus (“yellow bus”) service.

Pursuant to respondent’s transportation policy in effect in the 2010-2011 school year, students in grades kindergarten through two who reside one-half mile or more from their school and students in grades 3-6 who reside one mile or more from their school are eligible for free transportation, either through yellow bus service or a full-fare MetroCard for public transportation.  Where yellow bus service is provided, respondent’s policy states that “no bus route shall exceed a total one way route length of 5 miles through all stop points” and that no route will be established to serve less than 11 students.  Petitioner asserts that her residence is 3.7 miles from P.S. 50, while respondent, in its verified answer, asserts that petitioner’s residence is “a walking distance of approximately 3.6 miles” from P.S. 50.

The record also indicates that prior to the 2010-2011 school year, variances were available to certain students in approved gifted and talented programs under a provision of respondent’s policy that states, in pertinent part, that yellow bus service “shall not be provided for special non-mandated programs which draw pupils from their regularly zoned schools except for pupils attending approved programs for the gifted and talented.  The Office of Pupil Transportation will, based on criteria and procedures contained in Chancellor’s regulations, determine the type of transportation to be provided” (“gifted and talented program variance”).

In May 2010, pursuant to respondent’s transportation policy, petitioner applied for a variance to obtain yellow bus service for Shay on the grounds that “[t]ransportation for [Shay’s gifted and talented program] was previously provided [and] there is no access to public transportation.”  Petitioner requested that “the stop be continued until student no longer attends P.50.”

By letter dated June 23, 2010, respondent’s Office of Pupil Transportation denied petitioner’s variance request, stating that “no available stop can be created on a route that would not exceed five miles when measured through all the stops on the route.”  Respondent instead offered a full-fare MetroCard for access to public bus service.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 29, 2010.

Petitioner objects to respondent’s denial of her variance request for yellow bus service.  Among other things, petitioner alleges that “providing yellow bus service will not require a bus route to exceed the five-mile limit,” that a full-fare MetroCard is “not a safe or viable alternative” to yellow bus service, and that respondent has denied Shay “safe and timely transportation” in violation of its stated mission.  Petitioner further claims that respondent granted variances for Shay in previous school years and should continue to do so until he no longer attends P.S. 50.

Respondent contends that its decision that Shay was ineligible for yellow bus transportation for the 2010-2011 school year was not arbitrary and capricious and was in all respects proper.  Respondent also asserts that, in previous years, Shay received a variance for yellow bus transportation pursuant to a discontinued policy applicable to certain students in kindergarten through grade two, rather than through the gifted and talented program variance.[1]

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.

The appeal must 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).  The record indicates that respondent’s denial of petitioner’s request for a variance to receive yellow bus service applied to the 2010-2011 school year, which has concluded, although petitioner attempted to submit an ongoing request while her son attended P.S. 50.  However, variance requests in respondent’s district are submitted annually (seeAppeal of Colletta, 51 Ed Dept Rep, Decision No. 16,363).  Consequently, the appeal is moot (seeAppeal of Colletta, 51 Ed Dept Rep, Decision No. 16,363; Appeal of Litvak-Staroselsky, 51 id., Decision No. 16,340).

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



[1] I note that 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).