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Decision No. 17,454

Appeal of DAVID C. DALY, on behalf of his daughter COLLEEN T. DALY, from action of the Board of Education of the Valhalla Union Free School District regarding transportation.

Decision No. 17,454

(July 16, 2018)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Valhalla Union Free School District (“respondent”) denying his daughter transportation to a nonpublic school for the 2016-2017 school year.  The appeal must be dismissed.

Petitioner asserts that he sent an email to respondent on February 28, 2016 requesting transportation to “the Montfort Academy ... for the 2016-2017 academic year.”  As discussed below, however, the record contains a copy of such email which only requests contact information for the person responsible for transportation to nonpublic schools.[1]  Petitioner alleges that on, July 11, 2016, having received no response to his February 28 email from respondent, he sent a second email inquiring about transportation to private schools for his daughter during the 2016-2017 school year.  Thereafter, on August 8, 2016, petitioner submitted a “Request for Transportation – Private and Parochial Schools” form (“request form”) for his daughter to obtain transportation to Montfort Academy, a nonpublic school.  By letter dated August 9, 2016, respondent denied petitioner’s request for transportation because it was submitted after the April 1 deadline.  This appeal ensued. 

Petitioner alleges that his February 28, 2016 email to the district constituted a timely transportation request.  He further requests that respondent pay: (1) $450 for the cost of a monthly train ticket from the White Plains train station to the Fleetwood train station for the 2016-2017 school year; (2) $150 for the cost of transportation from the Fleetwood train station to Montford Academy (where his daughter attends school) for the 2016-2017 school year; (3) $20 for the cost of petitioner’s filing fee for this appeal; and (4) reasonable compensation for preparing this appeal.

Respondent contends that petitioner’s transportation request is untimely and that the Commissioner lacks the authority to award monetary damages.  Respondent maintains that petitioner is not entitled to transportation for the 2016-2017 school year because petitioner’s request was untimely.

Initially, I find that this 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner challenges respondent’s denial of his transportation request for the 2016-2017 school year.  The 2016-2017 school year has ended; therefore, the issue of transportation is moot (see Education Law §3635(2); Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

However, even if the appeal were not dismissed as moot, it would still be dismissed on the merits.

Education Law §3635(2) requires that an application for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  The record reflects that petitioner submitted a request form on August 8, 2016; more than four months after the April 1 deadline and petitioner has not provided a reasonable explanation for the delay.

Respondent submitted an affidavit from an official of the school business office which indicates that all parents must complete a transportation request form, and that petitioner was aware of such a requirement because (1) respondent emails a calendar to every family in the district each school year; (2) each calendar references “Private School Transportation” wherein the reader is notified that applications for nonpublic school transportation must be received in the business office no later than April 1st of each year; and (3) petitioner completed a request form for the 2014-2015 school year; which was also untimely.  She further asserts in her affidavit that transporting petitioner’s daughter to her nonpublic school would create an additional cost to the district.

Moreover, to the extent that petitioner asserts that the February 2016 email was a transportation request, I disagree.  The February 2016 email was not on the correct transportation form and, as noted above, was simply a request for contact information.  It did not contain the name of the student or the nonpublic school for which petitioner allegedly requested transportation and could not have reasonably been construed as a request for transportation for the 2016-2017 school year.  Therefore, petitioner has not met his burden of demonstrating that he submitted a timely request for transportation to the district.

Finally, to the extent that petitioner seeks reimbursement for transportation costs and/or for the filing fees or costs to file this appeal, those claims must be dismissed.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

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




[1] Respondent submits an affidavit from the Secretary to the Superintendent of Schools indicating that she searched through all of her emails and could not find any communication from petitioner on “February 26” or at any other time in February and that respondent did not receive petitioner’s February email.  On the other hand, petitioner provides a copy of what appears to be an automatically generated return email from respondent indicating that his February 28 email was sent successfully.