Decision No. 17,756
Appeal of CANDICE DUMERLIN, on behalf of MADISON and RILEIGH, from action of the Board of Education of the Bethpage Union Free School District regarding transportation.
Decision No. 17,756
(September 23, 2019)
Jaspan Schlesinger, LLP, attorneys for respondent, Laura J. Granelli, Esq., of counsel.
BERLIN., Interim Commissioner.--Petitioner appeals a determination of the Board of Education of the Bethpage Union Free School District (“respondent”) denying her daughters, Madison and Rileigh (collectively, “the students”), transportation to a nonpublic school for the 2018-2019 school year. The appeal must be dismissed.
The record reflects that the students attended the Long Island School for the Gifted (“LISG”), a nonpublic school, prior to the 2018-2019 school year. At the beginning of the 2018-2019 school year, petitioner enrolled the students in respondent’s public schools. Thereafter, petitioner decided to transfer her daughters back to LISG in the middle of the 2018-2019 school year.
Thereafter, petitioner requested transportation for her daughters to and from such school to their home. Respondent denied petitioner’s request on December 19, 2018. Respondent did not find that petitioner’s decision to enroll her daughters in LISG constituted a reasonable excuse for petitioner’s failure to submit a transportation request prior to the April 1 deadline (see Education Law §3635). Further, respondent found that busing petitioner’s daughters would impose an additional cost to the district. This appeal ensued. Petitioner’s request for interim relief was denied on January 15, 2019.
Petitioner contends that her request for transportation should be granted since she provided a reasonable explanation as to why her request for transportation was late. Petitioner further contends that transporting her two daughters to LISG would not impose additional costs on the district because respondent has already arranged for bus service to and from LISG.
Respondent contends that it acted reasonably in denying petitioner’s request. Respondent further argues that petitioner did not provide a reasonable explanation for the delay and that it would incur additional cost if it granted petitioner’s request.
I first must address several procedural matters. Respondent objects to petitioner’s reply. Respondent states that petitioner’s reply is procedurally defective because it was initially served before service of respondent’s answer and it contains new evidence not contained in the petition. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).
In this case, respondent’s answer was served by mail on petitioner on January 28, 2019. Petitioner initially served a copy of her reply on January 17, 2019, several days prior to service of respondent’s answer. Ordinarily, I would not consider the reply because 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 Kote, 58 Ed Dept Rep, Decision No. 17,539). However, it appears that petitioner sought to respond to allegations contained in the superintendent’s affidavit, which respondent submitted with its opposition to petitioner’s request for a stay and its answer. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to the respondents (Appeal of D.B., 56 Ed Dept Rep, Decision No. 17,041; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of Metze, 42 id. 40, Decision No. 14,768). Therefore, to the extent the reply responds to newly-raised contentions in the answer vis-à-vis the superintendent’s affidavit, I have accepted the reply in my discretion. I have not, however, considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Nevertheless 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 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 her transportation request for the 2018-2019 school year. Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635). The 2018-2019 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 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; 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).
Here, petitioner admits that her request for transportation to LISG was late, but requests that I excuse such delay based upon her realization that the students were not being challenged in public school and would be better suited at LISG. The Commissioner has repeatedly held that a belated decision to enroll a student in a private school is not a reasonable explanation for the late submission of a transportation request (Appeal of Jerome, 56 Ed Dept Rep, Decision No. 17,005; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The Commissioner has also specifically held that a parent’s determination that a nonpublic school would better suit a child’s needs does not constitute a reasonable excuse justifying a late request for transportation to the nonpublic school (see Appeal of Sarant, 41 Ed Dept Rep 70, Decision No. 14,617; Appeal of McNair, 33 id. 419, Decision No. 13,098).
Additionally, the record demonstrates that granting petitioner’s request would impose additional costs on the district. Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Meyerson, 46 id. 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545). However, where a late transportation request would result in additional cost, such transportation request may be denied. The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
Here, respondent asserts, and petitioner does not refute, that granting the transportation request would cost the district $16,507.32. Respondent explains that the district’s busing contract for LISG required a “per-seat” charge of $1,375.61 a month for every child who resides in the district taking the bus. Thus, providing transportation to plaintiff’s daughters would cost the district $2,751.22 per month, or approximately $16,507.32 for the remainder of the school year. Accordingly, I conclude that respondent has not abused its discretion in denying petitioner’s late transportation request where it would incur additional expenses to grant such request.
THE APPEAL IS DISMISSED.
END OF FILE
 The parties dispute the date of petitioner’s request for transportation. Petitioner maintains that she first contacted the transportation office on October 5, 2018, while respondent asserts that petitioner requested transportation for Madison on December 11, 2018, and for Rileigh on December 12, 2018. I need not resolve this dispute, however, because the appeal is dismissed as moot.