Decision No. 14,013

(September 4, 1998)

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Bay Shore Union Free School District ("respondent") that her son, Matthew, is not a district resident for the purposes of attending its schools tuition free. The appeal must be sustained.

Petitioner contends that she and Matthew reside at 3 Sampson Street, Bay Shore, within the Bay Shore Union Free School District. Respondent contends that petitioner's son lives alone at that address and that petitioner resides at 506 Fort Washington Avenue, Apartment 1A in New York City. Petitioner responds that she uses the Fort Washington address as her place of business and submitted a lease describing its use "as a real estate office and for no other purpose."

When the controversy regarding petitioner's residency arose during the 1997-1998 school year, her son was an eighteen year old student attending the Bay Shore High School. Respondent came to suspect that petitioner was not a resident of the district on January 7, 1998 when the principal of Bay Shore High School met with petitioner in his office to discuss some educational concerns related to her son and the adequacy of supervision being provided at home. The principal states in his affidavit that petitioner advised him that she did not live with her son at the Bay Shore apartment and only occasionally stays with Matthew at that address. He also states that petitioner indicated that she lived in New York City, and that her son was residing at the Bay Shore address without any adult supervision. Petitioner denies making these statements to the principal and asserts that she has resided and continues to reside within the geographic boundaries of respondent's district.

Respondent's Attendance Director submits an affidavit stating that he questioned petitioner's residency status when he became aware that mail going to petitioner from the district was being forwarded to her New York City address and, at some point, was sent there directly. He sent petitioner a letter dated February 26, 1998 that notified her that she did not qualify as a resident of the district and alerted her of the need to provide documentation by March 5, 1998 establishing her residence.

A school district investigator attests that he visited petitioner's Bay Shore apartment on February 26, 1998, met with landlords Reynoldo and Levia Prieto, and obtained a letter from them claiming that petitioner does not reside at 3 Sampson Street, that Matthew lives unsupervised in the apartment, and that petitioner takes her son away to stay at an unknown location on school holidays and weekends, returning him Sunday evenings to attend school. This letter also claims that police have been called to the apartment and that petitioner and her son were arrested on January 11, 1998 for "beating up" and "harassing the Prietos." Petitioner denies that the Prietos are the landlords of 3 Sampson Street, asserting that Damiano Contone is the only landlord, and states that she has been residing at 3 Sampson Street. Petitioner's attorney states that petitioner has been involved in a "bitter dispute" with the Prietos, who reside at 3 Sampson Street and own the property as tenants in common with Damiano Cantone. Petitioner submits an order of the District Court of Suffolk County, dated February 9, 1998, dismissing an eviction action brought by the Prietos against petitioner and her son. The Court order recounts the Prietos' opposition to Cantone's renting the apartment and states that, "The Leslies entered the premises with the assistance of the Suffolk County Police Department and over the objections" of Reynaldo Prieto. Petitioner's attorney states that the Prietos' interference with mail delivery to the Sampson Street apartment led to petitioner forwarding her mail to her business address of 506 Fort Washington Avenue, Apartment 1A, and requesting that mail be sent directly to her at that address rather than to the Sampson Street apartment. He also argues that the order by the Suffolk County District Court constitutes a judicial finding that petitioner leased and resided at the Sampson Street apartment and that it would be "absurd" to think that the Prietos would go to the trouble of bringing an eviction action against petitioner if she did not in fact live with her son at that address.

Petitioner first received notice from respondent of a question regarding her status when she received a letter dated February 23, 1998, informing her that the district had been advised that she moved from 298 Cottage Walk, Ocean Beach to 3 Sampson Street, Bay Shore, and that the move required proof of continued residence in the district by March 9, 1998. By letter dated February 26, 1998, the district's Attendance Director informed petitioner that she did not qualify as a district resident and that she had until March 5, 1998 to present documentation to support her right to send her son to Bay Shore High School. Petitioner produced the one-year lease for the 3 Sampson Street apartment, dated October 5, 1997, and signed by petitioner, her son and owner Damiano Cantone, as well as a letter dated March 4, 1998 from the real estate broker confirming petitioner's rental of the 3 Sampson Street apartment. Petitioner was informed in writing on March 5, 1998 of respondent's determination that she did not meet its residency requirements and that her son was being "withdrawn from Bay Shore High School effective the end of the school day today, March 5, 1998." The March 5, 1998 letter notified petitioner of her right to appeal to the Commissioner of Education within thirty days of its receipt. Petitioner then commenced this appeal. Petitioner's request for interim relief pending a determination on the merits was granted on April 14, 1998.

Respondent defends its determination that petitioner is not a resident, claiming that the evidence points to the conclusion that petitioner rented the Sampson Street apartment for her son in Bay Shore for the sole purpose of taking advantage of the district's schools, and at the same time avoiding the New York City school system. Petitioner admits to receiving mail and telephone calls at her New York City address but argues that that address is her place of business and not her residence.

Respondent offers the second affirmative defense of mootness, contending that petitioner's son signed a form in the presence of his aunt withdrawing himself from respondent's schools. Petitioner counters that respondent's actions compelled her son to withdraw from the district and that he signed the form only after receiving notice that he would be involuntarily excluded from respondent's schools.

I will first consider respondent's procedural defense of mootness. The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exist or which subsequent events have laid to rest (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Langenmayr, 30 id. 322). While petitioner's son has withdrawn from respondent's schools, because he is nineteen years old and has not yet received a high school diploma, he remains entitled to attend the public schools in the district in which he resides tuition-free under Education Law "3202(1). section 3202(1) provides that:

Therefore, the matter of his residency remains in controversy and this appeal is not moot.

Petitioner also argues that respondent failed to provide her with notice of the basis of its determination, as required by 8 NYCRR 100.2(y). Section 100.2(y) provides that the written notice provided to parents must state, among other things, "... the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools..." (8 NYCRR 100.2). Neither the district's letter of February 26 nor that of March 5, 1998 set forth the reasons for its determination of nonresidency, as required by 8 NYCRR 100.2(y) (See, Appeal of Daniels, 37 Ed Dept Rep 557; Appeal of Keenan, 36 id. 6; Appeal of Steiner, 33 id. 420; Appeal of Mandel, 29 id. 187). Accordingly, I admonish respondent to fully comply with the procedures established in 8 NYCRR 100.2(y) in the future. However, because the matter is now before me and petitioner has had ample opportunity to present evidence in support of her claim, I will address the merits.

The purpose of section 3202(1) is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Petrie, 37 Ed Dept Rep 200; Appeal of Cortes, 37 id. 114; Appeal of Keenan, supra; Appeal of Brutcher, 33 id. 56). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Kucherovsky, 37 Ed Dept Rep 241; Appeal of Simond, 36 id. 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). Thus, Matthew's residence is presumed to be that of petitioner.

Upon review of the record, I find respondent's evidence insufficient to support its determination that petitioner and her son do not reside in the district. First, it is undisputed that Matthew has been living at the Bay Shore apartment within the district. Although he was apparently 18 and living at the address within the district at the time of this appeal, the petition does not allege that he is emancipated nor is there any evidence in the record supporting such a claim. Consequently, because the student's residence is presumed to be that of his parent, petitioner's residence determines Matthew's entitlement under section 3202(1). Petitioner provides as proof of her residency, documentation including a letter from a real estate broker and a lease establishing her rental of the apartment in Bay Shore as a residence for herself and her son. While petitioner provided respondent her office mailing address and telephone number in New York City, the record supports her explanation that this was necessitated by the dispute with the Prietos and by her need to communicate during the school day from her place of business. I find the language of the lease provided by petitioner for her real estate office in New York City to be persuasive to establish that the property is not used as a residence, in the absence of proof to the contrary. The unsworn letter of the Prietos lacks credibility, in light of their combative history with petitioner and the Court order submitted by petitioner dismissing the Prietos' eviction action, which tends to corroborate her claim of renting the Bay Shore apartment as a residence for herself and her son. Respondent produces no additional evidence other than the principal's recollection of his conversation with petitioner which, while given consideration, is nevertheless outweighed by the evidence in the record taken as a whole. Therefore, I find respondent's decision to deny petitioner admission to its schools arbitrary, capricious, and an abuse of discretion. Accordingly, I find that petitioner is a resident of respondent's district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Bay Shore Union Free School District admit petitioner's son to the schools of the district without payment of tuition.

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