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Decision No. 17,900

Appeal of O.J., on behalf of her daughter S.B., from action of the Board of Education of the Valley Stream Union Free School District Thirteen regarding transportation.

Decision No. 17,900

(August 5, 2020)

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Christopher W. Shishko, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Valley Stream Union Free School District Thirteen (“respondent”) that her daughter (the “student”) is not eligible to receive transportation to a nonpublic school.  The appeal must be dismissed.

Respondent’s board policy 8410 identifies the circumstances under which respondent provides transportation to district residents.  As relevant here, students attending nonpublic schools are eligible for transportation so long as the distance transported does not exceed 15 miles.  Parents are also required to submit, pursuant to Education Law §3635(2), a request for transportation prior to April 1 of the upcoming school year for which transportation is sought.

On or about September 5, 2019, respondent received an email from petitioner in which she indicated that she was transferring her daughter from one nonpublic school to another and requesting transportation to the new school for the 2019-2020 school year.  Pursuant to respondent’s mileage calculation, it was determined that petitioner resided 16.9 miles from the nonpublic school for which petitioner sought transportation on her daughter’s behalf.

On September 16, 2019, respondent denied petitioner’s request for transportation because her request was made after the April 1 deadline, the transportation would result in additional costs to the district, and the distance from petitioner’s residence to the nonpublic school exceeded 15 miles.  This appeal ensued.

Petitioner contends that she and the student reside less than 15 miles from the nonpublic school the student attends and, consequently, the student is entitled to transportation to and from the nonpublic school.  Petitioner also asserts that she was discouraged from submitting a timely request for transportation because a school district employee told her in March 2019 that the distance to the nonpublic school was less than 15 miles.  Petitioner further states that she transferred the student to the new nonpublic school in reliance on a September 2019 email from a district employee indicating that she would be eligible for transportation for the 2020-2021 school year.  Finally, petitioner asserts that the public schools are “not an option” because the student was bullied “where she [previously] attended school.”  For relief, petitioner seeks an order directing respondent to provide transportation to the student for the 2019-2020 school year.

Respondent contends that the appeal must be dismissed for lack of personal service, lack of verification, and as untimely.  On the merits, respondent contends that its determination was rational and should not be disturbed.  Respondent contends that it accurately ascertained the distance between petitioner’s home and the nonpublic school using a district computer used exclusively for the purpose of taking such measurements.

The appeal must be dismissed for lack of proper 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).  Petitioner initially attempted to commence an appeal by submitting a letter that was received by my Office of Counsel on October 15, 2019.  In a letter dated October 16, 2019, my Office of Counsel returned this submission because it did not include a verified petition, notice of petition, or an affidavit of personal service.  Petitioner thereafter submitted the instant petition, which does not contain an affidavit of service.  Without any proof that petitioner served the petition on respondent, I am constrained to dismiss the appeal for lack of personal service (Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

The appeal must also be dismissed for lack of verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Pierre, 57 id., Decision No. 17,270; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, the petition does not contain an affidavit of verification and, instead, merely contains petitioner’s signature.  A signature alone does not constitute verification (Appeal of Garrison, 59 Ed Dept Rep, Decision No. 17,716; Appeal of Borgella, 59 id., Decision No. 17,705; Appeal of Williams, 57 id., Decision No. 17,355).  Because petitioner has not sworn under oath to the truth of the allegations in the petition, the appeal must be dismissed for lack of verification.

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