06-078

           Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which ordered it to reimburse respondent for his daughter's tuition costs at the York Preparatory School (York Prep) for the 2005-06 school year.  The appeal must be dismissed.

            Respondent's daughter was 17 years old and in the 11th grade at York Prep when the impartial hearing began in February 2006.  York Prep is a private school which has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The student's eligibility for special education as a student with a learning disability is not in dispute in this proceeding (8 NYCRR 200.1[zz][6]).

            Respondent asserts as affirmative defenses in his answer that the petition for review was served in an improper and untimely manner.  The Regulations of the Commissioner of Education require that when a board of education initiates an appeal from an impartial hearing officer's decision the petition must be served upon the parent (8 NYCRR 279.2[c]).  Personal service of a petition on a respondent is required whether the petitioning party is a parent or a board of education (8 NYCRR 275.8, 279.1[a]; Application of the Bd. of Educ., Appeal No. 05-082; Application of the Bd. of Educ., Appeal No. 01-048).  Petitioner attempted personal service on respondent on July 14, 15, and 17, 2006 (see Steuer Aff. ¶ 4).  Petitioner was not made aware of the failed service until July 24, 2006 (see Pet'r Reply at p. 3), whereupon petitioner mailed the petition via United Parcel Service (UPS) overnight delivery to respondent's home (see Steuer Aff. ¶¶ 5, 6).  The UPS delivery person left the envelope with respondent's neighbor on July 26, 2006 (id.).  The petition was not in a marked envelope that would indicate to the recipient that the envelope contained legal documents, and the neighbor accepted the envelope without knowledge of its contents (Answer Ex. 1).  The neighbor stated that she was not authorized to accept service of the petition (id.).  Given these facts, I find that the petition was not properly served upon respondent (8 NYCRR 275.8[a]).

            Respondent also asserts that the petition was not timely served.  A petition by a State Review Officer must comply with the timelines specified in the Regulations of the Commissioner of Education (see 8 NYCRR 279.2).  The petition must be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[c]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the period (id.).  A State Review Officer, in his or her sole discretion, may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The good cause for the failure to timely seek review must be set forth in the petition (id.).  The impartial hearing officer's decision is dated June 9, 2006 (IHO Decision, p. 9), and was sent electronically to petitioner on June 9, 2006 (see Answer Ex. 2 at pp. 3-6).

           Petitioner concedes that "ultimately" it did not timely serve respondent (Pet'r Reply at p. 4).  The last date that petitioner should have served the petition by was July 14, 2006, and the date that respondent's neighbor received the petition was July 26, 2006, 12 days later. It is not clear from the record when respondent ultimately received the petition.  I also find that under the circumstances here, petitioner did not timely serve the petition upon respondent.  The petition is therefore dismissed (Application of a Child with a Disability, Appeal No. 05-066; Application of a Child with a Disability, Appeal No. 05-048; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

THE APPEAL IS DISMISSED.