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Decision No. 16,377

Appeal of OLGA BATOV, on behalf of her son PHILLIP, from action of the New York City Department of Education regarding transportation.

Decision No. 16,377

(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 for the 2010-2011 school year.  The appeal must be dismissed.

Petitioner and her son reside in Staten Island, within respondent’s Community School District 31.  During the 2009-2010 school year, Phillip attended third grade in a gifted and talented program at P.S. 31 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 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.  Respondent claims, and petitioner does not dispute, that petitioner resides “a walking distance of approximately 6.2 miles” from P.S. 31.[1]

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.”

In June 2010, pursuant to respondent’s transportation policy, petitioner applied for a variance to obtain yellow bus service for Phillip based on “[i]nadequate public transportation.”

By letter dated July 1, 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 August 9, 2010.

Petitioner objects to respondent’s denial of her variance request for yellow bus service for the 2010-2011 school year.  Among other things, petitioner alleges that public transportation is inappropriate due to Phillip’s age, that the travel time is too long, and that, without a variance, she will be forced to remove Phillip from his gifted and talented program at P.S. 31.  Petitioner further claims that respondent granted a variance for Phillip for the 2009-2010 school year.

Respondent contends that its decision was not arbitrary and capricious and was in all respects proper.  Respondent also asserts that the variance program through which Phillip received yellow bus service during the 2009-
2010 school year was discontinued as of “the 2010 school year.”[2]

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 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, 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] In her variance request form, which is attached as an exhibit to respondent’s answer, petitioner stated that she resides “about 10 miles” from P.S. 31.

[2] 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).