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Decision No. 17,624

Appeal of E.B., on behalf of his child M.B., from action of the Board of Education of the New York City Department of Education regarding immunization.

Decision No. 17,624

(April 23, 2019)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Copatrick Thomas, Esq., of counsel

Petitioner appeals the determination of the New York City Department of Education (“respondent” or “DOE”) that his child, M.B. (“the student”), is not entitled to a religious exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The appeal must be dismissed.

The record indicates that the student’s mother applied for a religious exemption from the immunization requirements of PHL §2164 on the student’s behalf.[1]  In a memorandum dated June 11, 2018, respondent’s health services coordinator in respondent’s Office of School Health denied the request for a religious exemption.  The memorandum provided information about how to appeal the determination within the DOE.  Petitioner appealed the determination by requesting an interview with one of respondent’s health services directors.

The interview took place on June 29, 2018.  By memorandum dated August 13, 2018, petitioner’s appeal was denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 27, 2018.

Petitioner argues that respondent did not properly consider the exemption request, that the exemption should be granted, and that the denial of the request violates his constitutional rights.

Respondent asserts that petitioner failed to effectuate proper service and, therefore, has failed to timely commence the appeal.  Respondent contends that petitioner failed to establish that its determination is arbitrary and capricious.  Respondent asserts that its determination is supported by the record.

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 B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Respondent asserts that the notice and petition were not properly served upon it.  Respondent notes that petitioner’s affidavit of service does not state the full name of the individual served or describe the office where service was made.  The affidavit states that “Ms. Rodriguez” was served and that she is a “trustee” in respondent’s district.  Respondent asserts that it is not aware of any such trustee, that service was never made on respondent or its counsel, and that respondent only received notice of this proceeding from my Office of Counsel.

Petitioner did not submit any reply to respondent’s claim of improper service and has produced no evidence establishing that proper service was effectuated.  Consequently, because service is defective and jurisdiction over respondent is lacking, the appeal must be dismissed (Appeal of R.M., 57 Ed Dept Rep, Decision No. 17,214; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of J.L., 47 id. 151, Decision No. 15,654).

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



[1] The request for a religious exemption has not been provided in this appeal.