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Decision No. 13,380

Appeal of KOLLAL VARGHESE from action of the Board of Education of the Herricks Union Free School District regarding residency.

Decision No. 13,380

(March 23, 1994)

Adam Wright, Esq., attorney for petitioner

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

SOBOL, Commissioner.--Petitioner challenges respondent's decision to charge him tuition for the education of his three children during the months of September, October and November 1994. The appeal must be dismissed.

On September 8, 1994, petitioner registered his three children in respondent's schools. On the registration form, he indicated that he and his family resided at 1011 Hillside Avenue, which is an address within the district. At that time, petitioner stated that his residence telephone was not yet connected and probably would not be working until September 16, 1994. He did, however, provide a telephone number of a nonresident through whom he could be contacted before September 16th.

In or about the middle of October 1994, respondent's superintendent was informed by staff that they suspected that petitioner and his children were not district residents. In response, a district employee phoned petitioner at the number he supplied. During the ensuing conversation, petitioner admitted that he did not reside in the district. By letter dated October 27, 1994, respondent's superintendent informed petitioner that his residency status was in question and that pursuant to 8 NYCRR 100.2, petitioner could submit to respondent information demonstrating residence in the district.

On November 2, 1994, petitioner met with the superintendent and his secretary to discuss the issue. At that meeting, petitioner again admitted that he did not reside in the district, but stated that he expected to move into his Hillside Avenue residence on December 6, 1994. Based on those admissions, respondent's superintendent sent petitioner a tuition bill for his three children for the months of September, October and November 1994.

Subsequently, petitioner asserted that he had moved into the Hillside Avenue home on November 11, 1994. An investigation conducted by a licensed private investigator hired by respondent revealed that as of November 23, 1994 the Hillside Avenue residence was occupied by another family. That family did not move from the Hillside Avenue address until December 2, 1994.

Before reaching the merits, it is necessary to address a procedural issue. In a letter dated February 3, 1995, petitioner's attorney requested that I hold an evidentiary hearing on this matter. That request is denied. There is no provision for or requirement of an evidentiary hearing in connection with an appeal pursuant to Education Law '310 (Forrest v. Ambach, 93 AD2d 965, aff'd 60 NY2d 701; Application of O'Brien, 3 AD2d 321, aff'd 4 NY2d 140; Liebman v. Van Denberg, 168 Misc. 155).

Regarding the merits, petitioner contends that respondent should not be allowed to charge him tuition for the time he was not a resident because he intended to eventually move into the district. I find that argument unpersuasive. Admission to the schools of a public school district on a tuition-free basis is accorded only to residents of the district, pursuant to Education Law '3202(1), which reads in pertinent 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.

As noted in Matter of Buglione, 14 Ed Dept Rep 220, the purpose of this statute is to limit the obligation of school districts to provide tuition-free education, with certain exceptions that are not relevant in this instance, to students whose parents or legal guardians reside within the district (see also Matter of Bd. of Educ. v. Allen, et al., 29 AD2d 24).

Residence for purposes of Education Law '3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc 2d 60; Matter of Whiteman, 24 Ed Dept Rep 337) and an intent to reside in the district (Matter of Whiteman, supra; Matter of Manning, 24 Ed Dept Rep 33). In this case, while petitioner may have intended to reside in respondent's district, the record clearly establishes that he was never actually physically present there during the months of September, October and November 1994. Accordingly, he was not a resident of the district during those months, and must pay respondent tuition for his children's attendance during September, October and November 1994 (seeBd. of Educ., Bay Shore UFSD v. Marsiglia, 182 AD2d 662; Bd. of Educ. v. Crill, 149 App Div 407).

Petitioner also argues that respondent's superintendent should have informed him at the time of enrollment that his children could not attend school tuition-free. I find no merit in that contention. The record indicates that prior to mid-October 1994, respondent was unaware of petitioner's true residence. Moreover, the record contains some evidence that petitioner attempted to conceal the fact that he was a nonresident. In any event, even if the facts were otherwise, the courts have held that, except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Associates v. City of New York, 71 NY2d 274; Hamptons Hosp. v. Moore, 52 NY2d 88; see also Appeal of Tadesse, 31 Ed Dept Rep 426; Appeal of Siderius, 31 id. 288).

THE APPEAL IS DISMISSED.

END OF FILE