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Decision No. 18,128

Appeal of DAVID and GITA SCHLESINGER, on behalf of their child, from action of the Board of Education of the Fallsburg Central School District regarding transportation.

Decision No. 18,128

(June 2, 2022)

Ferrara Fiorenza PC, attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Fallsburg Central School District (“respondent”) denying their request for a specific pickup time for their child (the “student”) from a nonpublic school for the 2021-2022 school year.  The appeal must be dismissed. 

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  The student resides within respondent’s district and attends a nonpublic school within the Monticello Central School District (“Monticello”).  On or about October 6, 2021, respondent agreed to provide transportation for the student from school to home for the 2021-2022 school year.  Utilizing an existing bus run, respondent was able to pick up the student at the nonpublic school at 4:10 p.m.

A few days later, petitioners requested that respondent pick up the student at 5:40 p.m.  On October 14, 2021, the superintendent informed petitioner David Schlesinger by telephone that the district could not accommodate petitioners’ request.[1]  This appeal ensued.  Petitioners’ request for interim relief was denied on December 8, 2021.

Petitioners contend that their request for transportation is reasonable.  Petitioners further contend that respondent placed undue reliance on the costs associated with their request.  Petitioners request an order directing respondent to provide afternoon transportation to the student from school to home at 5:40 p.m. 

Respondent argues that the petition must be dismissed as untimely.  On the merits, respondent contends that petitioners have not met their burden of proving that the student is entitled to the requested transportation. 

The petition must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.B., 59 Ed Dept Rep, Decision No. 17,807; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846). 

Here, petitioners received actual notice of respondent’s determination on October 14, 2021.[2]  It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring a proceeding (see Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,988; Appeal of N.M., 59 id., Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483).  Petitioners commenced the appeal by service on respondent on November 29, 2021, well over 30 days after October 14, 2021.  Petitioners offer no explanation for the delay.  Thus, the appeal is untimely, and must be dismissed.

For the benefit of the parties, the facts of this appeal are materially indistinguishable from Appeal of Cohen (60 Ed Dept Rep, Decision No. 17,863), where the Commissioner denied a transportation request due to divergent departure times (an hour and 45 minutes), a lack of transportation to similarly situated nonpublic schools, and cost.  There is no evidence in the record herein that would compel a different outcome.

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




[1] Respondent’s business manager, who submitted an affidavit in this appeal, was in the room with the superintendent when he placed this call.


[2] Petitioners did not submit a reply or otherwise deny that this telephone conversation occurred.