Appeal of NAFTULI MOSTER and YOUNG ADVOCATES FOR FAIR EDUCATION (“YAFFED”) from action of the New York City Department of Education regarding substantial equivalence.

Decision No. 18,225

(January 10, 2023)

Christopher Hazen, Esq., attorney for petitioner

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorneys for respondent, Philip S. Frank, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge the New York City Department of Education’s (“respondent”) failure to determine whether several nonpublic schools within its geographical boundaries offer substantially equivalent instruction.  The appeal must be dismissed. 

In July 2015, petitioner Moster and other individuals submitted a letter (the “2015 complaint”) to respondent alleging that 39 nonpublic schools located within its geographical boundaries did not offer substantially equivalent instruction (see Education Law § 3204 [1]-[2]).  Respondent began an investigation, providing updates to the State Education Department in August 2018 and December 2019.  This appeal ensued.

Petitioners seek to bring this appeal on behalf of “unnamed individuals including the other signatories to the [2015 complaint] as well as current and former parents and students of the [y]eshivas named in” such complaint.  Petitioners argue that respondent should be compelled to declare whether its investigation into the 2015 complaint is complete or ongoing.  If the investigation is ongoing, petitioners seek an order that respondent complete the investigation within 30 days.  If the investigation is complete, petitioners request that respondent provide a detailed public report regarding the substantial equivalency of the yeshivas named in the 2015 complaint.  Petitioners further request that respondent release various documents associated with its investigation.

Respondent argues, among other things, that petitioners cannot bring the appeal on behalf of a class and that the petition must be dismissed for improper service.  On the merits, respondent states that the investigation is ongoing.  Respondent anticipates that the investigation will be concluded by the end of the 2022-2023 school year.

With respect to petitioners’ request for class status, an appeal may only be maintained on behalf of a class where:  (1) the class is so numerous that joinder of all members would be impracticable and (2) all questions of fact and law are common to all members of the class (8 NYCRR 275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  A petitioner must set forth the number of individuals he or she seeks to represent and show that all questions of fact and law are common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  Petitioners do not attempt to set forth the number of individuals they seek to represent, nor do they make any showing that all questions of fact and law are common to all members of the class.  Accordingly, class status is denied (Appeal of M.D., 58 Ed Dept Rep, Decision No. 17,591; Appeal of Beyda, 58 id., Decision No. 17,540). 

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).

Petitioners’ affidavit of service indicates that the petition was sent by email to “DOESubpoenas@schools.nyc.gov.”  This does not satisfy the personal service requirement of 8 NYCRR 275.8 (a).  Nevertheless, petitioners argue that respondent generally accepts service of process via email, as evidenced by information on its website.[1]  Respondent’s website indicates that “[t]he DOE accepts service of subpoenas for records and certain other legal papers by email at DOESubpoenas@schools.nyc.gov.”  However, the same website further indicates that “[s]ervice of process for legal papers other than subpoenas must generally be made upon the New York City Law Department.”  The Law Department’s website, in turn, identifies the dates and times when a “service window” is open and “temporarily” authorizes service by email to ServiceECF@law.nyc.gov.

While petitioners are correct that the phrase “certain other legal papers” is ambiguous, it was petitioners’ responsibility to ensure that they effectuated personal service as required by 8 NYCRR 275.8 (f).  Personal service is an affirmative defense that may be waived when, for example, an attorney agrees to accept service on behalf of a client (see generally Greenpoint Bank v Schiffer, 266 AD2d 262 [2d Dept 1999] [noting that the defense of lack of personal jurisdiction based on improper service may be waived], appeal dismissed 94 NY2d 890 [2000], cert denied 531 US 896 [2000]; Appeal of M.P. and T.P., 60 Ed Dept Rep, Decision No. 17,937).  Petitioners have not proved that respondent waived service, either through statements on its website or by an affirmative representation.[2]  Thus, petitioners have not demonstrated that they served a copy of the petition on respondent in accordance with section 275.8 of the Commissioner’s regulations.  As such, the appeal must be dismissed (Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526; Appeal of G.B., 46 id. 181, Decision No. 15,476).

While the appeal must be dismissed for improper service, respondent’s longstanding noncompliance raises an important issue that will be addressed by separate order (see Matter of Brachter, et al., 12 Ed Dept Rep 45, Decision No. 8,520).

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

THE APPEAL IS DISMISSED.

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