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Decision No. 18,417

Appeal of P.C., on behalf his child, from action of the New York City Department of Education regarding immunization.

Decision No. 18,417

(June 10, 2024)

Muriel Goode-Trufant, Acting Corporation Counsel, attorneys for respondent, Marlena Z. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) that his child (the “student”) lacks the immunizations required by Public Health Law (“PHL”) § 2164.  The appeal must be dismissed. 

On October 11, 2023 petitioner received a “Warning Notice” from respondent indicating that the student would be excluded from school after October 25, 2023 for lack of the required doses of the DTaP, polio, MMR, Hepatitis B, and Varicella vaccinations.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 25, 2023.

Petitioner argues, among other claims, that the student should be exempt from the vaccine requirements due to her overactive immune system and allergies.  Petitioner seeks a medical exemption from all “required vaccines.”

Respondent argues that the petition should be dismissed, among other reasons, for failure to exhaust administrative remedies.

The appeal must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

Petitioner indicates in his reply that he only requested a medical exemption from respondent after commencing this appeal.  That request, according to petitioner, remains “pending [with] the New York City Department of Health and Mental Hygiene.”  Given the lack of any final determination by respondent, the appeal must be dismissed as premature (see Appeal of J.K., 60 Ed Dept Rep, Decision No. 17,967; Appeal of J.A., 60 id., Decision No. 17,984).

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