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Decision No. 16,447

Appeal of D.V., on behalf of her sons A.V. and J.V., from action of the Board of Education of the Cornwall Central School District regarding residency.

Decision No. 16,447

(January 24, 2013)

Girvin & Ferlazzo, P.C., attorneys for respondent, Erin R. Morris, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Cornwall Central School District (“respondent”) that her sons, A.V. and J.V., are not district residents.  The appeal must be dismissed.

In October 2012, respondent began an investigation into petitioner’s residency after receiving information that she had moved from the district.  Respondent was further informed that petitioner was driving A.V. and J.V. from Rock Tavern, New York, outside the district, to their former bus stop where district buses transported them to school.  By letter dated October 16, 2012 and addressed to petitioner at the in-district address, petitioner was informed that her residency was in question and provided an opportunity to submit information.  After at least two unsuccessful attempts at delivery, the U.S. Postal Service returned the letter to respondent as “unclaimed.”  On November 15, 2012, respondent issued a final residency determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 6, 2012.

Petitioner asserts that she was forced to move from her residence in the district due to financial difficulties.  Petitioner claims she is without permanent housing and temporarily resides with friends in Rock Tavern.  Respondent argues, interalia, that the appeal must be dismissed for lack of proper service and for failure to state a claim upon which relief may be granted.

The appeal must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

As proof of service of the petition upon respondent, petitioner submits an unnotarized statement indicating that the petition was served by leaving it with a “secretary in said district ... duly authorized to accept service.”  The document does not indicate the name of the individual allegedly served.  However, in its verified answer respondent asserts that the petition was served on the district tax collector who is not authorized to accept service.  Petitioner submits no reply or other competent evidence to refute respondent’s claim of improper service.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).  On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed. 

For the benefit of the parties, I note that respondent asserts that it first became aware of petitioner’s claim that she resides in temporary housing upon receipt of the petition in this appeal challenging its November 15, 2012 residency determination.  According to the record, respondent permitted petitioner’s sons to continue to attend school in the district pending an investigation as to whether they are homeless within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431 etseq., “McKinney-Vento”).

By letter dated December 17, 2012, the superintendent advised petitioner that her sons do not lack a fixed, adequate and regular nighttime residence and, therefore, are not homeless within the meaning of McKinney-Vento.  Respondent’s determination was based upon its finding that petitioner resides with her boyfriend in a four bedroom, four bathroom home in Rock Tavern.  Respondent notified petitioner that her sons would be excluded from its schools on January 17, 2013 and advised her of her right to appeal its determination to the Commissioner of Education.   To date, petitioner has not filed any appeal challenging respondent’s December 17, 2012 determination.

Based on the foregoing, the instant appeal challenging respondent’s November 15, 2012 residency determination must be dismissed for lack of jurisdiction.  In light of this disposition, I need not address the parties’ remaining contentions.