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Decision No. 17,241

* Subsequent History: Matter of Funderburke-Ivey v Elia; Supreme Court, Albany County (Hartman, J.); Decision, order and judgment dismissed petition to review; November 19, 2019. *

Appeal of EMARINSIE FUNDERBURKE-IVEY on behalf of her son, DIMITRI FUNDERBURKE-IVEY, from action of the Board of Education of the Baldwin Union Free School District regarding a grading policy.

Decision No. 17,241

(November 1, 2017)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Baldwin Union Free School District ("respondent board" or "board") concerning a grading policy and respondent’s decision to prohibit her son from participating in the high school graduation ceremony.  The appeal must be dismissed.

Although not entirely clear, the record indicates that, prior to enrolling in respondent’s high school, petitioner’s son attended several other public and private high schools, as well as summer school programs.  Respondent’s district requires students to fulfill a sequence of math courses in order to graduate.  Petitioner states that, in or around January 2016, she met with district personnel to discuss her son’s progress in math.  At that time, petitioner states that she was informed that her son was at risk of not completing the required math sequence and, thus, not graduating.  Respondent generally disagrees with petitioner’s characterization of the meeting, but states that district personnel did discuss with petitioner the fact that her son was failing Algebra 2.  The petition attaches various correspondences between district personnel and petitioner regarding her son’s transcript and his status with regard to math.  By emails dated June 23 and 24, 2016, petitioner was informed that the district was “unable to verify that [the student] took and passed Algebra 2 or any other course to complete the required math sequence” and, therefore, until the district received verification that her son had taken and passed a third math course, he would be unable to graduate.

Thereafter, by email dated August 19, 2016, petitioner challenged respondent’s decision not to accept certain math credits for her son to graduate.  By letter dated September 1, 2016, the district’s attorney responded to petitioner’s email and informed petitioner that the district was still unable to verify her son’s completion of certain courses needed for graduation and that upon receipt of such verification, her son would be entitled to a diploma from the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 17, 2017.

Petitioner asserts that her son has completed all of the requirements for a diploma and that the board’s actions were arbitrary and capricious and unreasonable.  As relief, petitioner requests that her son receive a high school diploma as a June 2016 graduate, that his transcript also reflect a 2016 graduation date, and that certain errors on his transcript be corrected.

Respondent contends that its actions were in all respects proper as petitioner’s son has not met the district’s graduation requirements.  Respondent further contends that the petition is untimely and fails to state a claim, that service on respondent district was improper, and that the appeal is moot as petitioner’s son is no longer a student in the district and did not attend the district in the 2015-2016 school year.

The appeal must be dismissed for improper 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).  Petitioner’s affidavit of service indicates that the notice of petition and petition were served on respondent by leaving them with “Paula”, a secretary who is an employee in the district.  The affidavit of service does not contain a last name or description of the individual served, but does include a note that states that the security guard instructed the affiant to give the petition to “Ms. Paula”.  Respondent identifies the individual served as Paula Cerasoli, an employee in the Public Information Office, and denies that Ms. Cerasoli is authorized to accept service.  In addition, in an affirmation, respondent’s attorney asserts that Ms. Cerasoli was advised by the individual delivering the envelope that it contained a personal letter for the superintendent, not an appeal to the Commissioner, and that the transmittal sheet from Ms. Cerasoli, which is attached to the affirmation as an exhibit, indicated the same.  In her reply, petitioner does not dispute that Ms. Cerasoli was not authorized to accept service; rather, petitioner only appears to argue that the district has not been prejudiced because it has appeared and submitted an answer in the instant appeal.  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; Matter 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.

The appeal must also be dismissed as 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).  The record indicates that petitioner was notified that her son would not be permitted to graduate on or about June 23, 2016.  At the graduation ceremony, which took place on June 24, 2016, petitioner’s son did not receive a diploma.  Further, by letter dated September 1, 2016, the district’s attorney informed petitioner that the district was unable to verify credits for courses taken at other schools.  This appeal was commenced on December 22, 2016, almost six months after respondent’s denial of petitioner’s request to participate in the graduation ceremony and more than three months after the letter from respondent’s attorney.  Indeed, petitioner admits in the petition that this issue has existed for over six months.

Petitioner maintains that any delay in commencement of the appeal should be excused, however, because she was not represented by counsel until after the filing of the appeal, because her son would be harmed if the late filing were not excused, and because the district was on notice of the matters at issue in this appeal.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  I find no evidence of unusual circumstances in this case.  Accordingly, the appeal must also be dismissed as untimely.

Considering this disposition, I need not address the parties’ remaining contentions.