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Decision No. 17,788

Appeal of M.C. on behalf of B.C., D.C., and R.C. from action of the Board of Education of the Oyster Bay-East Norwich Central School District regarding residency.

Decision No. 17,788

(November 14, 2019)

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

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Oyster Bay–East Norwich Central School District (“respondent”) that her children, B.C., D.C. and R.C. (collectively, “the students”), are not district residents.  The appeal must be dismissed.

According to petitioner, the students have resided with her at a residence located within respondent’s district since 2012, during which time the students have attended the district’s schools.  In or about 2017-2018, it was reported to respondent that the Students resided outside of the district at the grandparents’ home (the “out-of-district residence”).

By letter dated May 3, 2019, respondent’s superintendent informed petitioner that, following an investigation, it had reason to believe that the students were not district residents, and that petitioner and the students were in fact residing with the students’ grandparents.  The letter advised petitioner that the students would be excluded from the district’s schools, effective June 21, 2019, unless petitioner elected to meet with the superintendent to present additional evidence regarding the students’ residency.  On May 21, 2019, petitioner met with the superintendent.

By letter dated June 4, 2019, the superintendent determined that the students were not district residents and, therefore, were not legally entitled to attend the district’s schools.  The superintendent advised petitioner that the students would be excluded from the district’s schools effective June 21, 2019.  This appeal ensued.

Petitioner contends that the students are district residents and that respondent conducted its investigation and surveillance during a period of “family crisis,” when the students were often at their grandparents’ home.  She further asserts that she felt “bullied” during her meeting with the superintendent.  For relief, petitioner seeks a determination that the students are legally entitled to attend the district’s schools.  Petitioner’s request for interim relief was denied on August 12, 2019.

Respondent argues that this appeal should be dismissed for lack of personal jurisdiction because petitioner failed to serve the pleadings upon the district clerk or other statutorily authorized person.  Respondent further avers that petitioner fails to state a claim upon which relief can be granted.

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).

Here, according to petitioner’s affidavit of service, the petition was served on an “[a]dministrative [a]ssistant” for the district.  Although the affidavit of service purports that this individual was “duly authorized to accept service,” respondent asserts that the individual upon whom the petition was served is in fact the district registrar, who is not authorized to accept service.  Respondent additionally proffers an affidavit from the registrar, in which she indicates that she immediately notified petitioner at the time of the attempt at service that she is unable to accept the same on behalf of the district;

“On or about August 1, 2019, a man who I believe to be Petitioner’s brother entered the School District administration building at about 3:00 p.m.  He told me that he wanted to drop something off with me.  I opened up the envelope and stated that I cannot accept papers with regard to the students.  The man went outside and started yelling at the Petitioner who was standing outside.  I heard Petitioner yell at him to put it on my desk.  He then put it on my desk.  Petitioner then started screaming at me, stating why I was giving her hard time.  When I responded to her that I am not supposed to accept papers with regard to the Students, she stated “well you are” and stormed out of the Administration Building.”[1]

Petitioner has not submitted a reply or otherwise refuted respondent’s allegations.  When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Accordingly, on this record, I cannot conclude that petitioner properly effectuated service upon respondent in accordance with section 275.8(a) of the Commissioner’s regulations, and the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining arguments.




[1] Par. 30 of the Affidavit, dated August 6, 2019, of Ms. Joanne Weber, the Registrar for the Oyster Bay–East Norwich Central School District.