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Decision No. 18,268

Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO, from action of Section VI of the New York State Public High School Athletic Association, Inc. and Mark DiFilippo, as executive director, regarding interscholastic athletics.

Decision No. 18,268

(April 26, 2023)

Nathaniel J. Kuzma, General Counsel for the Board of Education of the Buffalo City School District, attorney for petitioner, Christopher R. Poole, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondent, Lindsay A. Menasco, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of Section VI of the New York State Public High School Athletic Association (“NYSPHSAA”) that the district must forfeit a number of games as a result of its failure to obtain a transfer waiver.  Petitioner also names the executive director of Section VI of NYSPHSAA in connection therewith (collectively, “respondents”).  The appeal must be dismissed. 

In the 2021-2022 school year, a student attended school and played football in the Sweet Home Central School District.  Subsequently, the student enrolled in petitioner’s Bennett High School and began playing for its varsity football team in fall 2022. 

In a decision dated October 14, 2022, NYSPHSAA determined that the student was ineligible for competition because he violated NYSPHSAA’s “transfer” rule.  This rule provides that a student who transfers schools without a corresponding change in the residence of his or her parents is ineligible to participate in any interscholastic contest in a particular sport for one year if that student participated in that sport as a high school student in the year immediately preceding the transfer (see NYSPHSAA Bylaws and Eligibility Standards Rule 30).  As a result of this violation, NYSPHSAA required that petitioner forfeit any contests in which the student had participated, including victories in four high school football games.  This appeal ensued.[1]

 Petitioner argues that the student is not subject to NYSPHSAA’s transfer rule.  Petitioner also complains that its forfeiture of four victories “drastically [a]ffected the seeding of the team in the playoffs.”  While petitioner does not identify a specific request for relief, it appears to seek reversal of the forfeitures. 

Respondents argue that the appeal should be dismissed for improper service, lack of standing, and mootness.  Respondents also argue that the petition lacks a demand for relief and is without merit.

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.  Here, petitioner served the petition on NYSPHSAA via certified mail.  “Service by U.S. mail does not constitute valid service of a petition pursuant to Education Law § 310” (Appeal of McMahon, 62 Ed Dept Rep, Decision No. 18,217; see also Appeal of G.C., 58 id., Decision No. 17,637; Appeal of L.L., 54 id., Decision No. 16,670).  In its reply, petitioner contends that service “was done in accordance with the rules posted to the New York State Education Department’s website.”  While the text of the regulation would supersede any informal guidance, I note that the Office of Counsel’s website contains detailed instructions on how to personally serve a petition.[2]  Accordingly, the appeal must be dismissed for failure to comply with 8 NYCRR 275.8 (a).

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




[1] Petitioner subsequently requested, and respondent approved, a transfer waiver concerning the student.


[2] New York State Educ. Dep’t Office of Counsel, “Instructions and Sample Forms for Filing an Appeal for Petitioners not Represented by an Attorney,” (last accessed Apr. 21, 2023) (scroll to “IV. Serving Your Papers”).