Decision No. 14,576

(May 21, 2001)

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Franklin Square Union Free School District ("respondent") made December 21, 2000, that her son, John Anthony, was not a district resident and was not entitled to attend the district"s schools without the payment of tuition. Respondent"s determination excluded her son effective January 2, 2001. The appeal must be sustained.

Petitioner claims that she resides at 777 Forte Boulevard, Franklin Square, with her son and daughter, within respondent"s district. At the time this appeal was commenced, John Anthony was a sixth grade student at respondent"s John Street Elementary School, and had attended that school since kindergarten.

In October 2000, the district became suspicious that petitioner and/or her son were living at 922 Downing Road, North Valley Stream, which is outside respondent"s district, and where petitioner"s husband apparently resides. On October 19, a private investigator retained by respondent traveled to the Downing Road address at approximately 7:00 a.m., where he observed petitioner"s car parked in the driveway. At approximately 8:26 a.m., he observed petitioner, her son, and her daughter leave Downing Road and drive to Forte Boulevard, where petitioner dropped off her daughter, then drove her son directly to the John Street school. By letter dated October 27, 2000, from Karen Occhiogrosso, Assistant Superintendent for Business and Operations, the district advised petitioner of its belief that John Anthony was not a district resident, and invited her to present evidence of residency.

Petitioner met with Mrs. Occhiogrosso on November 1, at which time respondent claims that petitioner admitted that she lived outside the district (petitioner denies this). Petitioner presented the district with copies of her currently valid New York State driver's license issued in 1998, and a copy of a W-2 form also dated 1998, indicating that she resided at Forte Boulevard. Mrs. Occhiogrosso agreed to give petitioner until November 3 to present any additional evidence.

On November 3, petitioner presented a United States Postal Service change of address form dated November 2, 2000, indicating a change of address from 922 Downing Road to 777 Forte Boulevard. On December 5, petitioner further submitted a copy of a deed notarized December 4, 2000, executed by her brother, and purporting to transfer a one-half interest in 777 Forte Boulevard to petitioner. No other documents were presented.

The district then retained an investigator to do further observations. On November 7 and 8, petitioner"s car was parked early in the morning at Forte Boulevard, and petitioner was later observed driving to Downing Road with her daughter, but the investigator did not see John Anthony. Prior to 7:00 a.m. on the mornings of November 13 and 27, and December 8 and 12, petitioner"s car was observed parked at Downing Road. On November 13, the investigator saw no one leave Downing Road or use petitioner"s car, and left at 9:00 a.m. On November 27, the investigator observed petitioner and her daughter leave Downing Road and drive to Forte Boulevard, but the investigator did not see John Anthony at either address. On both December 8 and 12, petitioner left Downing Road with her daughter, and drove to Forte Boulevard. On both of those mornings, petitioner was observed entering the Forte Boulevard address with her daughter, then leaving the building with John Anthony, and walking him to the corner bus stop. After John Anthony caught the bus, petitioner again entered 777 Forte Boulevard and stayed there until the investigator left at 9:00 a.m.

Upon concluding these observations, by letter dated December 21, 2000, respondent"s counsel advised petitioner that her son "has not satisfied the residency requirements prescribed under School District policy and New York State Law, and as such, is not entitled to a free public school education in the Franklin Square Public Schools." This appeal was commenced January 3, 2001, and on January 11, 2001, Acting Commissioner Richard H. Cate issued an interim order directing respondent to admit petitioner"s son to the schools of the district tuition-free, pending an ultimate determination of this appeal.

Before I consider the merits, I must address a procedural matter. When the appeal was first commenced, petitioner appeared pro se. However, after service of respondent"s answer, attorney Stephan Persoff served and filed two affirmations and four affidavits which, although not labeled a reply, clearly served as a reply. Respondent objected to these materials, claiming that they set forth numerous facts and legal arguments not presented in the petition, and that respondent was not being afforded the opportunity to dispute the assertions. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or to add belatedly assertions or exhibits that should have been in the petition (Appeal of Instone-Noonan, 39 Ed Dept Rep 413, Decision No. 14,275; Appeal of Krantz, 38 id. 485, Decision No. 14,077; Appeal of Thompson, 34 id. 134, Decision No. 13,259). While some of the materials in the "reply" respond to new material presented in the answer, others present new matters that should have been part of the petition. For example, petitioner now seeks to present affidavits of persons who claim to know her residence, where previously only unsworn statements were submitted with the petition (and apparently were not submitted to respondent at all prior to its determination of December 21, 2000). In addition, petitioner seeks to present a police report of criminal mischief allegedly done to her car while parked at Forte Boulevard in January 2001, after this appeal was commenced. Accordingly, while I have reviewed petitioner"s submissions, I have not considered those portions containing new allegations or exhibits which are not responsive to new material or affirmative defenses set forth in the answer, nor have I considered materials which could have, and should have, been presented in sworn form with the petition.

Education Law "3202(1) provides, in pertinent part:

The purpose of the statute 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 Chan, 39 Ed Dept Rep 200, Decision No. 14,214, judgment granted dismissing petition to review, Supreme Court, Albany County, Special Term, Connor, J., June 7, 2000, n.o.r.; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). For purposes of Education Law "3202, a person can have only one residence; a residence is not lost until it is abandoned and another is established through action and intent (Appeal of a Student with a Disability, 36 Ed Dept Rep 113, Decision No. 13,674). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Wynter, 36 Ed Dept Rep 192, Decision No. 13,698; Appeal of Kapell, 36 id. 107, Decision No. 13,672). A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). Because there is no claim of any transfer of custody or control here, it is petitioner"s residence which determines whether or not her son may attend district schools.

Petitioner claims to have resided at 777 Forte Boulevard for over 30 years. She claims that she and her brother, Fausto Carbone, have been joint owners, but, because of past legal problems, ownership appeared in his name only as a matter of record. Petitioner possesses a currently valid New York State driver's license issued September 25, 1998, but has no income tax documents after 1998 because she is not currently employed. She claims that the change of address form she executed on November 2 was requested by Mrs. Occhiogrosso, and that the only reason her mail previously went to the out-of-district address is that she and her husband had joint credit cards, which he paid. She further claims that the deed dated December 4 was intended to confirm, as a matter of record, her previously existing one-half ownership interest in 777 Forte Boulevard, and that she had not had time to record the deed prior to giving a copy to the principal of the John Street school (who in turn gave it to Mrs. Occhiogrosso) on December 5.

Respondent relies on seven early morning observations of petitioner and/or her car on seven different dates in the fall of 2000. On two of those occasions, November 7 and 8, her car was seen parked at Forte Boulevard. On another occasion, November 13, her car was seen parked at Downing Road, but petitioner was not seen. (Petitioner claims that her husband owns two cars, including the 1999 Isuzu she uses, and suggests that she and her husband had switched cars on that occasion.) On the four remaining occasions, October 19, November 27, December 8 and 12, petitioner"s car was seen at the Downing Road address, and she was observed leaving that address prior to the opening of school, once with her son and daughter, and on the other three occasions only with her daughter. (Petitioner claims that occasionally her children sleep over at her husband"s address, and when they do, she goes to pick them up very early in the morning.)

While these observations raise some questions as to petitioner"s residence, they are hardly conclusive (cf., Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142, where surveillance was conducted on approximately 35 occasions over a four month period; Appeal of Green, 40 id. ____, Decision No. 14,545, where all of six observations indicated non-residency; and Appeal of Laquerre, 40 id. _____, Decision No. 14,558, where all of eleven observations indicated non-residency). Petitioner has described the strained marital relations she and her children are currently experiencing, and has given explanations for her presence at her husband"s out-of-district residence which are not implausible, considering the family situation.

In this appeal, neither party has put forth an extremely strong or compelling case with respect to residency. As a result, I do not find that respondent had a sufficient factual basis to determine that petitioner resides outside the district, and I therefore set aside that determination (Appeal of Staton, 40 Ed Dept Rep ____, Decision No. 14,440; Appeal of Chan, supra).

I have reviewed the parties" remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow John Anthony Vitolo to attend school in the Franklin Square Union Free School District without the payment of tuition.

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