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Decision No. 16,378

Appeal of PHILIP J. NICOTRA, on behalf of his children KRISTIANA and PHILIP, JR., from action of the New York City Department of Education regarding transportation.

Decision No. 16,378

(July 20, 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 his requests for transportation for the 2010-2011 school year.  The appeal must be dismissed.

Petitioner and his children reside in Staten Island, within respondent’s Community School District 31 (“CSD 31”).  During the 2009-2010 school year, Kristiana and Philip, Jr., attended third and first grades, respectively, in a gifted and talented program at P.S. 69, which is outside CSD 31.  The record indicates that both children were provided with transportation to P.S. 69 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 his residence is 4.7 miles from P.S. 69, while respondent, in its verified answer, asserts that petitioner’s residence is “a walking distance of approximately 4.2 miles” from P.S. 69.

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 variances to obtain yellow bus service for both children based on “[u]navailable/inaccessible public transportation.”

In August 2010, respondent’s Office of Pupil Transportation denied petitioner’s variance requests, stating that “no available bus stop can be provided on a route that would be less than five miles long when measured through all the stops on the route.”  Respondent instead offered full-fare MetroCards for access to public bus service.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 6, 2010.

Petitioner objects to respondent’s denial of his variance requests for yellow bus service for the 2010-2011 school year.  Among other things, petitioner alleges that public transportation is “unsafe and unsupervised” and will place his children in “grave danger and threaten their safety,” that the travel time is too long, and that, without a variance, his children will not be able to continue their participation in the gifted and talented program at P.S. 69.  Petitioner further claims that respondent granted variances for his children in previous school years and should continue to do so until they graduate from the gifted and talented program.

Respondent argues that the appeal must be dismissed because the petition is not verified.  Respondent also contends that its decision was not arbitrary and capricious and was in all respects proper and that the variance program for certain students in approved gifted and talented programs, through which petitioner’s children previously received yellow bus service, was discontinued as of the 2010-2011 school year.[1]

The appeal must be dismissed.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Petitioner’s initial appeal papers consisted of a notice of petition and petition, as well as and an affidavit of verification dated September 9, 2010, but did not include an affidavit of personal service in accordance with Commissioner’s regulations §§275.8 and 275.9.  The corrected petition includes an affidavit of personal service dated September 23, 2010, but contains no affidavit of verification.  The petition before me, therefore, is not properly verified and must be dismissed.

The appeal is also 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 variances 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] 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).