Appeal of FOUZIA ASTEA, on behalf of her son MAZEN ELKHADY, from action of the New York City Department of Education regarding transportation.

Decision No. 16,516

(August 26, 2013)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education(“respondent”) to deny her request for transportation. The appeal must be dismissed.

Petitioner’s son, Mazen Elkhady, attended ninth grade at Aviation High School (“school”) during the 2012-2013school year. On or about October 26, 2012, respondent’s Office of Pupil Transportation (“OPT”) received a “Distance Evaluation Request” from petitioner challenging the distance determination between her home and the school and seeking a full-fare Metro Card for her son. By letter dated December 4, 2012, OPT determined that Mazen was ineligible for the full-fare card due to his grade level and failure to meet the distance requirement for that grade. OPT determined that petitioner’s home was 1.404 miles from the school, which is less than the 1.5 miles required by Chancellor’s Regulation A-801 §1(2.3) to entitle him to full-fare transportation. However, Mazen was provided with a half-fare Metro Card. This appeal was commenced on February 5, 2013, and petitioner’s request for interim relief was denied on February 26, 2013.

Petitioner seeks a full-fare Metro Card for her son. Petitioner asserts that a half-fare Metro Card is not sufficient because she is unable to afford the remainder of the fare. Petitioner claims that her home is more than 1.5 miles from the school and that the route Mazon must travel is unsafe. Respondent contends that the instant appeal is untimely and that its determination is neither arbitrary nor capricious.

An appeal to the Commissioner must be commenced within30 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). 1

OPT’s December 4, 2012 letter informed petitioner of her right to appeal its determination to the Commissioner of Education and specifically noted that such an appeal must be commenced within 30 days. Petitioner failed to properly serve the instant appeal upon respondent until February 5, 2013.¹ Petitioner has not requested in her petition that the delay in bringing the appeal be excused, nor has she submitted a reply in response to respondent’s affirmative defense. On this record, I find that the instant appeal is untimely and that petitioner has offered no good cause for the delay. Consequently, the appeal must be dismissed.

The appeal must also 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).

Petitioner is challenging respondent’s denial of her request for a full-fare Metro Card for transportation for the 2012-2013 school year. As noted above, petitioner did not commence this appeal until February 5, 2013. Her request for interim relief was denied shortly thereafter and the school year has ended. In respondent’s district, transportation variance requests are submitted and decided annually (see Appeal of Nicotra, 52 Ed Dept Rep, Decision No. 16,378; Appeal of Colletta, 51 id., Decision No. 16,363) and circumstances may change from school year to school year. In view of the fact that the 2012-2013 school year has concluded, the matter is moot.

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

I note that petitioner first contacted my Office of Counsel (“OC”)regarding her transportation issues by letter dated December 15, 2012.By letter dated December 28, 2012, OC provided petitioner with information regarding filing an appeal pursuant to Education Law §310.On January 24, 2013, petitioner attempted to commence this appeal on by mailing it to OC. On January 30, 2013, OC returned the petition because of improper service upon respondent. By facsimile dated February 4, 2013, petitioner requested extra time to respond to OC’s letter. In a letter dated February 5, 2013, OC reiterated to petitioner that an appeal must be commenced within 30 days and that the reasons for a delay in filing an appeal must be set forth in the petition.

THE APPEAL IS DISMISSED.

END OF FILE