Decision No. 18,239
Appeal of JOSEPH FAVUZZA, on behalf of his child, from action of the Board of Education of the Eastchester Union Free School District regarding transportation.
Decision No. 18,239
(February 14, 2023)
Keane & Beane, P.C., attorneys for respondent, Susan E. Fine, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District (“respondent”) denying his child (the “student”) transportation to Greenwich Country Day School (the “nonpublic school”) for the 2022-2023 school year. The appeal must be dismissed.
Petitioner and the student reside in respondent’s school district. Since 2019, respondent provided transportation between petitioner’s home and the nonpublic school’s lower/middle school (“lower school”). The record reflects that the nonpublic school’s high school is located on a separate campus from the lower school.
In March 2022, petitioner requested transportation to the high school. Respondent denied this request because the high school was 16.2 miles from petitioner’s home. Petitioner then submitted a second request for transportation to the lower school campus. In an email dated March 25, 2022, respondent’s supervisor of transportation informed petitioner that “the denial for transportation stands.” This appeal ensued. Petitioner’s request for interim relief was denied on May 25, 2022.
Petitioner contends that the nonpublic school’s lower and high school buildings should be considered a single school complex for purposes of transportation. Petitioner additionally argues that respondent could transport the student to the lower school, where he could then take a shuttle bus “for the incremental 2 miles” to the high school campus. Petitioner further notes that “it appears exceptions were made” for other students as the bus the student rode in previous years transported students from neighboring districts to the nonpublic high school. Petitioner seeks a determination that the student is eligible for transportation to the nonpublic school for the 2022-2023 school year.
Respondent alleges that the appeal from the first denial of transportation is untimely. On the merits, respondent argues that the student is only entitled to transportation to and from the school building he legally attends, which is more than 15 miles from his home.
First, I must address two preliminary matters. Respondent contends that the appeal should be dismissed for lack of the notice of petition required by 8 NYCRR 275.11 (a). In a letter dated April 25, 2022, the Office of Counsel returned a copy of the petition served on April 22, 2022 because it lacked the required notice. In this letter, the Office of Counsel indicated to petitioner that, if a corrected petition was served and filed within two weeks of the April 25, 2022 letter, the appeal would be deemed to be initiated on the day the petition was originally served on respondent. Petitioner complied with these instructions. Therefore, there is no basis to dismiss the appeal for lack of the required notice.
Respondent additionally argues that the appeal must be dismissed as untimely because petitioner commenced the appeal more than 30 days after respondent denied his request for transportation to the high school. Respondent argues that petitioner’s request for transportation to the lower school constituted a request for reconsideration that did not restart the 30-day time limitation. 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). A request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
Petitioner’s second request cannot be considered a request for reconsideration as he requested transportation to a different address (see Appeal of Szczepanski, 60 Ed Dept Rep, Decision No. 17,940 [respondent entertained petitioner’s new request and issued a new, final decision, and it was deemed timely]; Appeal of a Student Suspected of Having a Disability, 57 id., Decision No. 17,261). Therefore, I decline to dismiss the appeal on this basis.
Turning to the merits, a school district must provide transportation to children who reside within the district and attend nonpublic schools, provided that the distance between the child’s home and his or her nonpublic school is within the statutorily prescribed limits (Education Law § 3635  [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865). Specifically, a board must provide transportation for all children attending kindergarten through grade 8 whose home and school are between 2 and 15 miles apart, as well as all children attending grades 9 through 12 whose home and school are between 3 and 15 miles apart (Education Law § 3635  [a]). A school district may provide transportation for a lesser or greater distance only upon approval by the voters of the district (Education Law § 3635  [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).
Additionally, a district may furnish transportation for certain other children attending nonpublic schools in accordance with Education Law § 3635 (1) (b) (i). A school district providing transportation to a nonpublic school for children living within the specified distances from such nonpublic school must designate one or more public schools as centralized pick-up points and provide transportation between such pick-up points and such nonpublic school for children who reside within the district but live too far from the nonpublic school to otherwise qualify for transportation. Education Law § 3635 (1) (b) (i) does not require a district to provide transportation from centralized pick-up points to any nonpublic school to which it does not already provide regular home-to-school transportation (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).
Education Law § 3635 (1) (b) (ii) further states that a board of education “may, at its discretion,” provide transportation from a centralized pick-up point for a child residing within the district to a nonpublic school located more than 15 miles from the child’s home, provided that the district has provided transportation to such nonpublic school in at least one of the immediately preceding three school years (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865). If a school district exercises its discretion to provide such transportation, the distance from the centralized pick-up point to the nonpublic school must not exceed 15 miles (Education Law § 3635  [b] [ii]; Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447).
The Commissioner will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable, or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; 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 establishing the facts upon which he or she 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).
It is undisputed that petitioner lives 16.2 miles from the nonpublic high school, which is beyond the 15-mile statutory limit set forth in both Education Law § 3635 (a) and respondent’s policy. Petitioner’s argument that the nonpublic school’s two campuses constitute a single “school” that his child attends must be rejected for the reasons articulated in Appeal of Sastow (47 Ed Dept Rep 486, Decision No. 15,762). In that appeal, the nonpublic school operated a “multi-campus facility” with buildings located at three separate addresses. A parent requested transportation to the school building their child did not attend, the high school, which was more than 15 miles from her home. The Commissioner held that the student was not entitled to transportation because the school she “legally attend[ed]” was the middle school building where she received instruction. The Commissioner reasoned that “[a] public school district is also a single legal entity, but its students do not ‘legally attend’ all of the schools it operates” (id., citing Appeal of Nicotri, 38 Ed Dept Rep 80, Decision No. 13,987). Given the general applicability of the phrase “the school [a child] legally attends” in Education Law § 3635 (1) (a), the Commissioner found “no logical reason to apply different rules for public and nonpublic schools which operate multiple school buildings” (id.). I agree with this reasoning, which dictates the result of this appeal (Appeal of Sastow, 47 Ed Dept Rep 486, Decision No. 15,762; see also Appeal of Goldstein, 40 id. 159, Decision No. 14,448 [two Catholic schools located a mile apart that had comparable curriculum, engaged in reciprocal social activities, and combined drama clubs considered separate schools for purposes of transportation]; Appeal of Hinkley, 37 id. 431, Decision No. 13,897 [two schools that shared a common parking lot, a German language instructor, the same religious chapel, and meal preparation considered separate schools for purposes of transportation]).
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Additionally, as recently noted, “[t]he notice of petition is a procedural device to ensure that respondents are apprised of their obligation to answer the allegations in the petition within 20 days of service thereof” (Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185 [citing Tinker Ltd. P'ship v Berg, 26 Misc 3d 1214(A), 2010 NY Slip Op 50096[U] [Nassau Dist Ct 2010]). As such, the ordinary remedy should be to excuse a late answer, not to dismiss the appeal in its entirety.
 Moreover, since the extent to which the lower and high school can be considered a single location is the principal issue to be resolved in this appeal, it should not be resolved within the context of timeliness.
 The Commissioner’s decision in Appeal of Sastow was issued after the parent originally obtained a favorable ruling in Supreme Court, Nassau County. On appeal, the Second Department reversed the order and judgment, holding that Supreme Court “should have refrained from entertaining the [case] prior to ... an administrative appeal” to the Commissioner of Education “[u]nder the doctrine of primary jurisdiction” (Matter of Sastow v Plainview-Old Bethpage Cent. School Dist., 44 AD3d 1057, 1058 [2d Dept 2007]). The parent then commenced an appeal to the Commissioner under Education Law § 310, which resulted in the Commissioner’s decision in Appeal of Sastow.
 Petitioner’s suggestion that other school districts may have provided gratuitous transportation to the nonpublic school is irrelevant to respondent’s obligations described herein. Moreover: (1) the centralized pick-up point requirement (Education Law § 3635  [b] ) is inapplicable since respondent does not provide transportation to any other student at the nonpublic high school; and (2) respondent is not required to provide transportation for students to a nonpublic school located more than 15 miles from their home, as contemplated by Education Law § 3635 (1) (b) (ii), because the provision of such transportation is discretionary (Appeal of Poles, 55 Ed Dept Rep, Decision No. 16,800; Appeal of Hughes, 48 id. 299, Decision No. 15,865).