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Decision No. 13,109

Appeal of MARY ANN REINA, on behalf of SANDY REINA, LESLIE REINA and ERICKA REINA, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 13,109

(February 22, 1994)

Ingerman, Smith, Greenberg, Gross, Heidelberger, Richmond, Reich & Scricca, Esqs., Christopher Venator, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her daughters, Sandy, Leslie and Ericka, are not residents of the East Islip Union Free School District. The appeal must be dismissed.

On or about January 20, 1993 respondent learned that petitioner and her daughters lived in a neighboring school district and not at 23 Satellite Drive in respondent's district, as previously reported by petitioner. Based on that information, respondent's attendance aide attempted to verify petitioner's residence. On January 20, 1993, the aide visited 23 Satellite Drive. She spoke with one of the owners of the property, who is apparently the uncle of petitioner's children. The aide stated that she was taking a school census and wanted to know if any other families lived at the residence. The uncle responded that no other families lived there.

When petitioner was informed of the results of the aide's visit, she advised respondent that a mistake had been made and urged that the investigation be continued.

On January 26, 1993, the attendance aide returned to 23 Satellite Drive and spoke with the aunt of petitioner's children, who stated that petitioner and her children lived in a downstairs apartment, but were not home at the time. When asked how petitioner and her family could access that apartment -- since the downstairs entrance in the rear of the residence was blocked -- the aunt replied that petitioner's family used the front door. On January 28, 1993 at 5:00 p.m., the aide again visited 23 Satellite Drive and was told by the aunt that petitioner and her daughters were shopping and not at home. The aide visited petitioner's alleged residence four more times between January 28 and February 5, 1993. At no time did the aide observe petitioner at that location, although she did see one of petitioner's daughters at the residence with the aunt on February 5, 1993. On two of the visits, the aunt stated that petitioner and her family lived with her in the upstairs portion of the house. That statement conflicted with what she had told the aide on January 26, 1993. The aide also visited 23 Satellite Drive two times in September 1993. Again, petitioner and her children were not present. On March 9, 1993, respondent notified petitioner that her children would be excluded from the district schools. This appeal ensued.

Before reviewing the merits, it is necessary to address a procedural issue. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused for good cause shown (8 NYCRR '275.16). Petitioner challenges respondent's March 9, 1993 determination that she and her children do not reside in the East Islip district and are, therefore, not entitled to attend the district's schools tuition free. In light of the fact that this appeal was not commenced until October 25, 1993 -- over seven months after the March 9 determination -- and petitioner offers no excuse for the delay, it is dismissed as untimely.

The appeal is also dismissed on the merits. Upon review of the record, I find that there is insufficient evidence to establish that petitioner's children have a right to attend school in respondent's school district tuition free. Education Law '3202(1) provides in part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of the statute is to limit the obligation of school districts to provide tuition-free education to those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

Other than petitioner's assertion that she resides in the East Islip district, she presents no evidence to support her claim. Attached to her petition is a copy of a letter from a member of the New York State Assembly. However, the address on the letter is merely to a post office box in Islip Terrace and provides no proof that petitioner resides in the East Islip district. In light of the observations of respondent's attendance aide, the conflicting statements made by the owners of 23 Satellite Drive and the lack of any documentary evidence to support petitioner's claim, there is no basis to conclude that respondent was arbitrary or capricious when it determined that petitioner and her children are not residents of the East Islip district.

THE APPEAL IS DISMISSED.

END OF FILE