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Decision No. 14,743

Appeal of V.B., on behalf of her daughter A.B., from action of the Board of Education of the Harrison Central School District regarding residency.

 

Decision No. 14,743

(June 19, 2002)

 

John M. Voetsch, Esq., attorney for petitioner

 

Ingerman Smith, L.L.P., attorneys for respondent, Gus Mountanos, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Harrison Central School District ("respondent") that her daughter is not a district resident. The appeal must be sustained.

Petitioner leases an apartment in Harrison, New York, within respondent's district, and asserts that she resides there with her daughter. Her daughter is in the 11th grade and has always attended respondent's schools. Petitioner asserts that she is legally separated from her husband and shares joint custody of their daughter with him. Her husband resides in Mamaroneck, New York, outside respondent's district.

In the fall of 2001, an investigator employed by respondent conducted surveillance at the Mamaroneck residence. He observed petitioner"s daughter leaving the residence five times between September 28, 2001 and October 22, 2001, and he observed petitioner leaving the residence on one occasion in October 2001. However, no surveillance was conducted at the Harrison residence where petitioner asserts that she resides with her daughter.

By letter dated October 23, 2001, respondent's assistant superintendent for curriculum and instruction advised petitioner that her daughter would be discharged from respondent's high school effective November 2, 2001, because he had determined that she was not a district resident. Petitioner was also notified of district procedures to obtain review of this decision.

On October 29, 2001, respondent's assistant superintendent for curriculum and instruction conducted a residency hearing which petitioner and her husband attended. Petitioner submitted documentation, including an October 23, 2001 letter from her apartment management company, stating that she had been a tenant at the Harrison residence since June 2000; a New York State Driver's license issued on January 11, 2001; and telephone and utility billing statements. In response to the surveillance report, petitioner stated that her daughter occasionally slept at her father's Mamaroneck residence because she shared custody with him, and acknowledged that she herself had stayed at the Mamaroneck residence once in a reconciliation attempt.

During the residency hearing, the assistant superintendent asked whether he could visit petitioner's residence to determine the validity of her claim. Petitioner agreed to a home visit at 6:30 p.m., stating that she had a medical appointment earlier that evening. Instead, the assistant superintendent arrived at petitioner's apartment at 5:00 p.m. He alleges that he overheard petitioner engaged in a heated argument with an individual who he thought to be her husband, and that he heard petitioner scream, "Hurry up! He's coming at 6:30." The assistant superintendent states that he left without making petitioner aware of his presence because he feared for his safety and did not want to interfere in a domestic dispute.

After the residency hearing, petitioner submitted further documentation, including a lease for the Harrison residence covering the period from May 15, 2000 to May 31, 2001, and a May 1, 2001 letter from the apartment management company, indicating that the rent would be increased for the period from June 1, 2001 to May 31, 2002.

By letter dated October 31, 2001, the assistant superintendent advised petitioner that he sustained the original determination and that her daughter would be excluded from respondent's schools as of November 12, 2001. This appeal ensued. Respondent agreed to extend the exclusion date until November 27, 2001, and petitioner's request for an interim order was granted on November 21, 2001.

Petitioner asserts that respondent's residency determination was arbitrary and capricious. Respondent does not dispute that petitioner leased the apartment within its district. Rather, it contends that petitioner has since reconciled with her husband and resides with him in Mamaroneck. Respondent theorizes that petitioner has allowed a relative to reside in the Harrison residence, thereby explaining her access to the apartment on the date of the home visit and the documentary evidence submitted as proof of her residency.

I must first address several procedural matters. Respondent contends that petitioner's reply should not be considered because it is in response to respondent's affidavit and affirmation in opposition to the stay request. Since the stay has already been granted, respondent argues that the issue is now moot. However, since petitioner submitted the reply after the stay was granted and her affidavit is responsive to new material alleged in respondent's answer, it is apparent that she intended it as a reply to respondent's answer, and I have considered it accordingly.

Respondent further contends that the reply should not be considered because the verification of the reply affidavit was not notarized. Section 275.5 of the Commissioner"s regulations requires that all pleadings be verified. Although the verification was initially defective because it had not been notarized, a properly verified reply was promptly filed when petitioner was advised of the defect. Respondent does not plead any prejudice resulting from this late submission of a properly verified reply, nor do I find any such prejudice. The Commissioner has previously accepted a pleading that was promptly resubmitted with a proper verification where there has been no evidence of prejudice to the opposing party (see, Appeal of P. and C.R., 41 Ed Dept Rep ____, Decision No. 14,611; Appeal of Christe, 40 id. ___, Decision No. 14,514). Accordingly, I will accept petitioner's reply.

Respondent also objects to portions of petitioner's reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Karpoff, et al., 40 Ed Dept Rep _____, Decision No. 14,527; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Therefore, while I have reviewed petitioner's submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Education Law "3202(1) provides 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.

The purpose of this 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 Johnson, 40 Ed Dept Rep 29, Decision No. 14,411; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Residency for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district, and an intent to reside in the district (Appeal of Johnson, supra; Appeal of Dimbo, supra; Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466). A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Samuel, 39 Ed Dept Rep 94, Decision No. 14,183; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). Where a child"s parents live apart, the child can have only one legal residence (Appeal of Bouttry-Martin, 37 Ed Dept Rep 125, Decision No. 13,820).

Respondent's assistant superintendent appears to have based his determination in large measure upon his home visit to the Harrison residence. He arrived at 5:00 p.m. although he had told petitioner that he would conduct the visit at 6:30 p.m. Evidently, he overheard petitioner tell someone to hurry because of the scheduled home visit, and he concluded that petitioner had lied about having an earlier appointment to give herself enough time to make it appear as if she lived in the apartment with her daughter. Petitioner asserts, however, that she had cancelled her medical appointment to clean the apartment prior to the assistant superintendent's arrival. In light of the assistant superintendent's decision to leave without identifying himself and his limited observation, I find that there is insufficient evidence to conclude that petitioner's assertion is not truthful.

Respondent also asserts that petitioner lied when she told the assistant superintendent that the special education office sent correspondence to the Harrison residence because his investigation showed that its correspondence had been sent to a Harrison post office box. Respondent, however, does not contest that petitioner received some of her mail at the Harrison residence, and there would appear to be no reason for her to fail to disclose the Harrison residence to respondent's representatives as she asserts that she did.

Petitioner acknowledges that her automobile is registered at her husband's address, but her assertion that this was done for insurance purposes is supported by the fact that respondent's investigator never observed the vehicle at the Mamaroneck residence.

The evidence supplied by petitioner to support her claim of residency is more persuasive than the evidence relied upon by respondent to conclude that petitioner is not a district resident. Petitioner has submitted a driver"s license, lease, affidavits, and utility statements reflecting the Harrison address. The student's occasional presence at her father's residence is not inconsistent with petitioner"s claim that the child resides with her in respondent"s district. Based on the totality of the record before me, I find that petitioner has established that she and her daughter are district residents. Accordingly, respondent"s determination is set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit petitioner's daughter to the schools of its district without payment of tuition.

END OF FILE.