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Decision No. 16,524

Appeal of GINA SGARLATO BENFANTE, on behalf of her son ALAN RICHARD BENFANTE, from action of the New YorkCity Department of Education regarding transportation.

Decision No. 16,524

(August 26, 2013)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, John Buhta, 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. The appeal must be dismissed.

Petitioner and her son reside in Staten Island. During the 2012-2013 school year, petitioner’s son attended seventh grade at Marsh Avenue Expeditionary Learning School(“Marsh Avenue school”) in Staten Island.

From at least 1980 through the 2009-2010 school year, respondent provided free school bus (“yellow bus”)transportation to certain Staten Island seventh and eighth graders who lived 1.5 miles or more from schools located in Staten Island, without having to apply for individual variances. All of these schools were covered under a blanket variance known as the “V0708 variance.” During the2010-2011 school year, the Chancellor eliminated the V0708variance to close the district’s projected budget gap. In the summer of 2010, litigation was commenced to reinstate the variance.

On June 28, 2011, the Appellate Division, Second Department ruled that respondent’s decision to eliminate funding for transportation variances previously available to provide yellow bus transportation for seventh and eighth-grade students in Staten Island and Breezy Point had a rational basis and was not arbitrary and capricious(Ignizio, et al., v. City of New York, et al., 85 AD3d1171, reversing a prior decision [Ignizio, et al. v. Cityof New York, et al., 29 Misc3d 1231(A), 2010 NY Slip Op52106(U) (December 6, 2010)] by Supreme Court, Richmond County that found that the New York City Department of Education’s decision was arbitrary and capricious).

In response to the court decision, the Legislature enacted Chapter 42 of the Laws of 2012, known as the School Bus Restoration Bill, to restore bus service to children in schools covered under the V0708 variance. Specifically, the legislation provides, in pertinent part, as follows:

3. Notwithstanding any other provision of law, rule or regulation to the contrary, in cities with a population of one million or more, the requirement of paragraph c of subdivision one of this section, requiring that a city school district providing transportation for children residing within such district offer such transportation equally to all such children in like circumstances, shall not apply to the use of existing contract bus service provided for children in elementary grades by pupils in grades seven and eight, but only where such use is a reinstatement of a service provided in the school year beginning in September, two thousand nine and ending in June two thousand ten.

Thereafter, the Chancellor determined that, for the 2012-2013 school year, respondent would reinstate yellow bus transportation for seventh and eighth graders who attended schools in Staten Island and Queens where such service had been provided during the 2009-2010 school year under the variance, as provided under Chapter 42 of the Laws of 2012. Because the Marsh Avenue School did not have yellow bus service in the 2009-2010 school year, respondent therefore determined that the school was not covered by the new law. On June 20, 2012, petitioner was notified that her son would not be provided with yellow bus transportation to the Marsh Avenue School for the 2012-2013school year.

On or about June 27, 2012, petitioner commenced an Article 78 proceeding in New York County Supreme Court seeking to compel respondent to provide her son with yellow bus service to and from the Marsh Avenue School for the 2012-2013 school year. While the proceeding was pending, pursuant to respondent’s transportation policy, petitioner applied for a hazard variance to obtain yellow bus service for her son based on “[h]azardous conditions along the route to school, bus, or subway station” and “[u]navailable/inaccessible public transportation.” By stipulation and order dated July 18, 2012, the parties agreed to stay the Article 78 proceeding to allow petitioner to exhaust her administrative remedies and the parties have since stipulated to the dismissal of the Article 78 proceeding in Supreme Court, New York County. By letter dated August 28, 2012, respondent’s Office of Pupil Transportation (“OPT”) denied petitioner’s variance request and provided her son with an alternate route. This appeal ensued.

Petitioner claims that her son is entitled to transportation pursuant to Chapter 42 of the Laws of 2012.In the alternative, petitioner argues that her son is entitled to a hazard variance for yellow bus service for the 2012-2013 school year, alleging, among other things, that the alternative route proposed by respondent would endanger the safety of her son “by proposing he traverse an area without any sidewalks, as well as cross the major highway of Staten Island.” Petitioner also contends that “the travel time of respondent’s alternative route is further in distance from the bus stop referred to in petitioner’s application for a variance.” In addition, petitioner asserts that there is a bus for sixth-graders that will be picking up students in the area of petitioner’s residence.

Respondent argues that the appeal must be dismissed as moot and contends 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). By memorandum dated October 15, 2012, respondent agreed to provide yellow bus transportation, commencing on October15, 2012 and continuing for an interim period that shall not extend beyond June 26, 2013, to all eligible seventh and eighth grade students attending the Marsh Avenue school, including petitioner’s son. Therefore, petitioner’s transportation claims for the 2012-2013 school year must be dismissed as moot.

To the extent that petitioner attempts to assert claims regarding yellow bus transportation in the 2013-2014school year, the appeal is premature because the facts and circumstances of petitioner’s transportation request may change in the 2013-2014 school year and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

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