Decision No. 13,481

(September 5, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs.,

attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner challenges respondent's refusal to allow her children to attend its schools tuition-free because she is not a resident of the district. The appeal must be dismissed.

Petitioner's children, James and Thomas, enrolled at respondent's high school at the beginning of the 1994-95 school year. In May 1995, respondent notified petitioner that it had determined that her children were not residents of the district and, therefore, could no longer attend the public schools of the district. Petitioner initiated this appeal and requested an interim order directing respondent to admit her children for the remainder of the 1994-95 school year. On June 9, 1995, Commissioner Sobol granted that request. Upon review of the entire record subsequently submitted, I must now dismiss the appeal.

Education Law '3202(1) limits the obligation of school districts to provide tuition-free instruction to students who reside in the district (Appeal of Cupid, 34 Ed Dept Rep 609; Appeal of Baguidy, 32 id. 162; Matter of Buglione, 14 id. 220). Section 3202(1) provides:

Petitioner bears the burden of establishing her "residence" in respondent's district (Appeal of Cupid, supra; Appeal of Baguidy, supra). For purposes of Education Law '3202(1), "residence" means "domicile" which is established by one's physical presence and the intention to remain there permanently (Appeal of Cupid, supra; Appeal of Baguidy, supra; Appeal of Reifler, 31 Ed Dept Rep 235).

While petitioner submits some evidence of having lived at one time within respondent's school district, respondent submits substantial evidence demonstrating petitioner no longer resides there. Petitioner asserts that she established residence at 2316 Rockwood Avenue, within respondent's district, in September 1994. Petitioner further maintains that she and her children continue to reside at that address. Petitioner submits copies of her 1994 income tax forms and mail addressed to petitioner at Rockwood Avenue. Although petitioner states in her petition that she has a lease and rent receipts, she failed to submit documentation to support that claim.

Respondent submits a report by a private investigator who conducted surveillance on petitioner and her children from May 4, 1995 through May 22, 1995. The private investigator's surveillance provides substantial evidence that petitioner and her children reside outside respondent's district. The investigator's affidavit cites several instances where petitioner's children were observed leaving for school from 326 Brookside Avenue, an address outside of the district, in Roosevelt, New York. On several occasions the investigator also observed two cars, registered to petitioner, parked outside the Roosevelt address.

The investigation also reveals that petitioner's husband's credit records reflect the Roosevelt address. Further, petitioner's telephone listing indicates residence at the Roosevelt address, and there is no telephone listing at the Baldwin address. Respondent also submits a statement by its attendance officer indicating that he visited the Rockwood Avenue address within the district and spoke to petitioner's in-law, who was living there. The woman indicated to the attendance officer that only one child, petitioner's cousin-in-law, lived at that address, and that no other children lived there. Respondent also states in its verified answer that its dean of students spoke to the cousin-in-law, a student at respondent's high school, who indicated that his cousins, petitioner's children, had briefly lived with him earlier in the year but no longer did. Petitioner submits no further proof in reply to this evidence.

Based upon the record before me, I find that petitioner has failed to establish actual physical presence in the district. Thus, it was reasonable for respondent to conclude that petitioner and her children reside outside of respondent's district and cannot attend the schools of the district tuition-free.

THE APPEAL IS DISMISSED.

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