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Decision No. 16,380

Appeal of JANET O’CONNELL, on behalf of her children VICTORIA and TYLER, from action of the New York City Department of Education regarding transportation.

Decision No. 16,380

(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 her requests for transportation.  The appeal must be dismissed.

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

Respondent’s transportation policy in effect in the 2010-2011 school year does not provide for school bus (“yellow bus”) service to students in grades seven through 12.[1] Instead, those students were 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.  Individual variances permitting yellow bus service could be granted in certain limited circumstances (e.g. where public transit is inadequate or unavailable).  However, the record indicates that, until the 2010-2011 school year, respondent apparently permitted a general variance, providing yellow bus service to seventh and eighth-grade students in Staten Island.  Respondent discontinued funding for that variance beginning with the 2010-2011 school year.[2]

In August 2010, petitioner’s husband applied for variances to obtain yellow bus service for Victoria and Tyler based on “[h]azardous conditions along the route to school, bus, or subway station,” “[u]navailable/inaccessible public transportation,” and “[d]istance disagreement.”[3]

In separate letters dated September 27, 2010, respondent’s Office of Pupil Transportation (“OPT”) stated that “while the pupil is ineligible [for a variance] by grade and distance, hazardous conditions have been [found] on t[h]e pupil’s walk to school” and that the children were thus eligible to receive public transportation via full-fare MetroCards.

This appeal ensued.  Petitioner’s request for interim relief was denied on November 2, 2010.

Petitioner argues that her children are entitled to yellow bus service rather than public transportation, alleging, among other things, that portions of their route to school are dangerous; lack sidewalks, traffic lights and crossing guards; and that public bus routes and railway stations are inaccessible and hazardous.  Petitioner also claims that respondent failed to provide public notice and acted arbitrarily and capriciously in discontinuing funding for variances for yellow bus transportation for seventh and eighth-grade students in Staten Island.

Respondent argues that its decision was not arbitrary and capricious and was in all respects proper.

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 variances 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 has been enacted as Chapter 42 of the Laws of 2012, which would permit respondent to provide yellow bus service to seventh and eighth-grade students in the future when it was provided in the 2009-2010 school year.

To the extent petitioner generally challenges respondent’s action discontinuing the general variance permitting yellow bus service for seventh and eighth-grade students in Staten Island, her appeal is untimely.  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).  According to the Appellate Division decision in Ignizio, et al. v. City of New York et al., 85 AD3d 1171, to which petitioner was not a party, respondent’s determination to eliminate the prior variance occurred on May 13, 2010 and exhibits in this record dated July 2010 allude to repondent’s previous determination.  Petitioner did not initiate this appeal until October 21, 2010, well beyond the required time period.  Therefore, any challenge to respondent’s May 13, 2010 action is untimely.

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



[1] Although the record does not contain a copy of the policy, I take administrative notice of Chancellor’s regulation A-801, relating to transportation, which is posted on respondent’s official web site.

[2] 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).

[3] Although petitioner’s husband checked the “[d]istance disagreement” box on the variance application, petitioner does not appear to make any assertion regarding the distance between her home and the school.  Respondent alleges that petitioner resides 1.4 miles from the school, and petitioner has submitted no reply or other evidence to the contrary.