Application of the Board of Education of the City School District of the City of New York

STATE OF NEW YORK

OFFICE OF STATE REVIEW

01-048

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:

Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Chad Vignola, Esq., Special Assistant Corporation Counsel, and Marykate O'Neil, Esq., of counsel

Neal H. Rosenberg, Esq., attorney for respondents

Petitioner, the Board of Education of the City School District of the City of New York, appeals from an impartial hearing officer's decision which ordered it to reimburse respondents for the cost of their son's education at Winston Preparatory School (Winston Prep) for the 1999-2000 school year. It also appeals from the hearing officer's determination that Winston Prep was the student's pendency placement. The appeal must be dismissed on procedural grounds.

The hearing officer's decision from which petitioner appeals was issued on or about May 10, 2001. To commence its appeal, petitioner served a notice with verified petition upon respondents' attorney, by facsimile, on July 5, 2001. The affirmation of service prepared by petitioner's attorney provides that a member of his staff contacted respondents' attorney on July 5, 2001, to inquire if the attorney would accept service on behalf of his clients. The affirmation further provides that respondents' attorney "indicated that he would accept service on behalf of the Respondents." There is no indication in the affirmation that respondents' attorney agreed to accept service by facsimile. In their answer, respondents challenge the timeliness of the appeal, as well as the method by which the Board of Education attempted to serve the petition. They assert that while their attorney agreed to accept service on their behalf, he did not agree to waive personal service, or to accept service of a copy of the petition by facsimile. I note that petitioner has not replied to respondents' affirmative defenses, as is permitted by 8 NYCRR 279.6.

Part 279 of the Regulations of the Commissioner of Education, which governs appeals to the State Review Officer, does not explicitly set forth the method of service to be used when a board of education brings an appeal to the State Review Officer. However, Section 279.1(a) of the Regulations of the Commissioner of Education provides that the provision of Parts 275 and 276 shall govern the practice on such reviews, except as provided in Part 279. Section 275.8(a) of the Regulations of the Commissioner of Education requires that a copy of the petition be personally served upon the respondent. As there is no specific provision to the contrary in Part 279, I find that personal service is required to initiate appeals to the State Review Officer (Application of the Board of Educ, Appeal No. 91-35).

In initiating this appeal, however, petitioner departed from the required procedure by serving its petition by facsimile. An alternative form of service may be authorized by the Commissioner of Education in Education Law § 310 appeals, when it is necessary to do so (8 NYCRR 277.8[a]), and could presumably be also done by the State Review Officer. It was therefore incumbent upon petitioner to demonstrate why its alternative method of service should be permitted. I note that in its petition, petitioner requests an extension of time to file its appeal and offers an explanation for its delay. However, it did not request permission to use an alternate method of service, nor did it explain why the alternate method of service was used.

As noted above, respondents have raised the affirmative defense of improper service in their answer. Petitioner did not file a reply responding to respondents' procedural defenses, nor did it refute respondents' claim that their attorney did not agree to accept service by facsimile. Based upon the information before me, I am compelled to find that respondents did not agree to accept service by facsimile. The Board of Education did not seek permission to use an alternative method of service, and it does not offer any explanation for its failure to personally serve the petition as prescribed by the Regulations of the Commissioner of Education. Therefore, I must dismiss the appeal because the petition was not properly served, and I do not reach the merits of the case.

THE APPEAL IS DISMISSED.