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Decision No. 17,206

Appeal of TAE JOON KIM, on behalf of his son JIN TAE KIM, from action of the New York City Department of Education regarding transportation.

Decision No. 17,206

(October 3, 2017)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Mark G. Toews, Esq. of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent” or “DOE”) denying his request for transportation for his son.  The appeal must be dismissed.

Petitioner is a resident in respondent’s district.  During the 2012-2013 school year, petitioner’s son attended fourth grade at P.S. 209Q in the district.  Respondent’s transportation policy (“Chancellor’s regulation A-801”) provides that students in grades three through six who reside one mile or more from their school are eligible for free transportation, either through school bus service or a full-fare MetroCard for public transportation.  Students in grades three through six who reside more than one half mile and less than one mile from school are eligible for half-fare surface transportation in the form of a half-fare MetroCard.  Pursuant to Chancellor’s regulation A-801, petitioner’s son was ineligible for school bus service, unless entitled to a variance in accordance with the regulations.

Petitioner requested school bus transportation for his son based on grade and distance and also because he claimed that hazardous conditions exist along the proposed route.  Respondent denied his request and offered a half-fare MetroCard for public transportation.  This appeal ensued.

Petitioner asserts that he lives more than a mile from his son’s school based upon distance measurements derived from an internet-based map.  Alternatively, petitioner alleges that his son’s walking route is very dangerous with numerous hazards due to traffic. 

Respondent denies petitioner’s allegations and asserts that, when determining whether a student is eligible for transportation, its Office of Pupil Transportation (“OPT”) uses software to calculate distances established by the New York City Department of City Planning (“Department of City Planning”) and does not rely on internet-based software applications for distance measurements.  Respondent also asserts that it investigated petitioner’s son’s school route and found that no hazardous conditions exist warranting a variance.  Thus, respondent argues that its determination was not arbitrary and capricious and should be upheld.

I must first address a procedural issue relative to petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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).  With respect to petitioner’s claim regarding respondent’s distance calculation, it appears that petitioner’s son no longer attends P.S. 209Q, rendering the issue of the accuracy of respondent’s distance calculation to that school academic.  In any event, upon review of the record, petitioner has not established that respondent’s methodology for measuring distance is inaccurate or unreasonable.  With respect to petitioner’s claim that his son is entitled to transportation based on hazard, the appeal is also moot.  The school year ended, and, in respondent’s district, variance requests are submitted annually (Appeal of Allen, 56 Ed Dept Rep, Decision No. 16,970; Appeal of Kravchenko, 56 id., Decision No. 16,941; Appeal of Abeido, 55 id., Decision No. 16,859).  Therefore, petitioner’s challenge to respondent’s denial of his hazard variance request is moot.

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