When parents prevail following a hearing conducted before an Impartial Hearing Officer (IHO), the NYCDOE has 35 days from the date of the IHO’s decision to serve its appeal papers. Those papers normally must be timely served directly upon the student’s parents.
In S.H. et al. v. NYCDOE, a case in which we represented the student, the IHO held for the student and his parents and the NYCDOE decided to appeal. There was only one problem. The NYCDOE apparently did not even attempt to serve its appeal papers until the afternoon of the very last day to so and when that attempt was made, the student and his parents were not home. Accordingly, the NYCDOE’s appeal papers were not timely served. While service of the NYCDOE’s appeal papers ultimately was made, it was done so untimely as the NYCDOE failed to effectuate service within 35 days of the IHO’s decision.
The State Review Officer dismissed the NYCDOE’s appeal as untimely and rejected the NYCDOE’s plea for an extension. Undaunted, the NYCDOE filed a further appeal with the federal district court in Manhattan and then upped the ante, claiming that the reason why service was not timely made was because the student’s parents did not actually reside at the Manhattan address given for service! In other words, the NYCDOE claimed that the student’s parents were lying about their Manhattan residence.
Our office moved to dismiss the NYCDOE’s appeal on the basis that the City’s appeal was untimely and that therefore, the Court did not have subject matter jurisdiction. We also submitted voluminous documentation to show that the student and his parents actually resided (and continue to reside) at the NYC address indicated on the student’s DOE IEP. That documentation included bank statements, credit card statements, tax returns evidencing the payment of New York City taxes, utility bills, cable bills, and even photographs of every room in the family’s NYC apartment evidencing regular day-to-day living arrangements.
By Decision dated January 22, 2014, the federal district court (Hon. Alison J. Nathan) dismissed the NYCDOE’s (untimely) appeal on the grounds that the court lacked subject matter jurisdiction, stating:
“Common sense dictates that dropping by a person’s apartment building twice on a weekday is not a foolproof method for encountering that person. It was unreasonable for the City to believe otherwise … the City should have expected last-minute personal service to be difficult…” (Emphasis added).
As a result of the district court’s ruling, the family is now entitled to the tuition funding relief awarded at the IHO level, and also is now entitled to make an application before the federal court to recover the reasonable attorney’s fees recorded at the IHO, SRO and district court levels.