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Decision No. 18,242

Appeal of C.C., on behalf of her children, from action of the Board of Education of the Merrick Union Free School District regarding residency.

Decision No. 18,242

(February 22, 2023)

John J. McGrath, Esq., attorney for petitioner

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

ROSA., Commissoner.--Petitioner appeals the decision of the Board of Education of the Merrick Union Free School District (“respondent”) that her children (the “students”) are not district residents.  The appeal must be dismissed.

Given the disposition of this appeal, a complete recitation of the facts is unnecessary.  In a written decision dated August 31, 2022, respondent concluded that the students were not district residents entitled to attend respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 11, 2022.

Petitioner seeks a determination that the students are residents of the district and are entitled to attend the district’s schools tuition-free.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 27, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

Following the initiation of this appeal, respondent informed the Office of Counsel that, by order dated October 14, 2022, Suffolk County Family Court directed petitioner and the students to reside within respondent’s district and attend respondent’s schools.  In accordance with that order, respondent enrolled the students in its schools on October 17, 2022. Therefore, I can no longer award petitioner any meaningful relief and the appeal must be dismissed as moot.[1]

Respondent argues that the matter is not moot because petitioner may not comply with the Family Court order or Family Court could enter a new order.  The Court of Appeals has held that an otherwise moot matter may be justiciable where there is:  (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e. substantial and novel issues (Hearst Corp. v Clyne, 50 NY2d 707; see also Russman v Board of Educ. of the Enlarged City Sch. Dist. of the City of Watervliet, 260 F3d 114).  Respondent has not proven that the instant scenario fits within this exception to the mootness doctrine (Appeal of the Board of Educ. of the Greenwood Lake Union Free Sch. Dist., 58 Ed Dept Rep, Decision No. 17,549; Appeal of C.H., 52 id., Decision No. 16,465).  First, respondent merely speculates that the matter may reoccur, which does not demonstrate a likelihood of repetition.  Second, the disposition of a previous appeal brought by petitioner demonstrates that the matter is not likely to evade review (Appeal of C.C., 62 Ed Dept Rep, Decision No. 18,154).  Finally, respondent has not explained how resolution of this dispute would address a matter of statewide public interest, nor does it identify a novel issue of public concern (Application of the Board of Educ. of the Beekmantown Cent. Sch. Dist., 59 Ed Dept Rep, Decision No. 17,718).




[1] Insofar as petitioner also seeks an order directing respondent to “provide make up instruction for the time the [students] were not permitted to attend [respondent’s] schools,” petitioner has not alleged any legal basis for such a directive.