Appeal of AGISILAOS JOHN LEONTAKIANAKOS, on behalf of his children Anastasia and Yianni, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding residency.

Decision No. 14,757

(July 24, 2002)

Guercio & Guercio, attorneys for respondent, David Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") that his children, Anastasia and Yianni, are not district residents. The appeal must be sustained.

Petitioner's children have attended school in respondent's district since September 5, 2001. Petitioner alleges that he, his wife and their children resided at their residence within respondent's district until December 3, 2001, at which time petitioner and his wife separated. Petitioner alleges that his wife and their children established temporary residence at the children's grandmother's residence in Hicksville, New York, which is located outside respondent"s district. Petitioner alleges that there has not been any change as to his custodial rights with respect to his children as a result of the separation. Petitioner requests a determination that his children are legal residents of respondent's district. On January 29, 2002, I granted petitioner's request for interim relief and directed respondent to continue to admit petitioner"s children to the district"s schools pending the determination of this appeal.

Respondent generally denies petitioner's allegations and contends that petitioner has failed to meet his burden to establish a clear legal right to the relief requested and that respondent's determination should be upheld as it was not arbitrary or capricious, based upon evidence obtained by the respondent during its investigation.

Before proceeding to the merits of this appeal, I note that respondent requests that I accept, pursuant to "275.6 of the Commissioner"s regulations, certain specified correspondence from respondent's director of pupil personnel services to petitioner, as set forth in the March 18, 2002 letter of its attorney. Respondent contends that these documents were inadvertently omitted from respondent's previous submission of its Affirmation in Opposition and Verified Answer. In view of their apparent inadvertent omission, and in the absence of any demonstrated prejudice to petitioner, I have accepted these documents for inclusion in the record pursuant to "275.6.

Turning to the merits, I note that 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 L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Karmin, 41 Ed Dept Rep __, Decision No. 14,618). The record in this appeal is rather sketchy and neither petitioner nor respondent has provided a comprehensive exposition of their respective positions. However, I am constrained to find, on the record before me, that respondent's determination that petitioner's children are not district residents is based upon insufficient evidence and is therefore arbitrary and capricious.

Respondent generally alleges that its decision is based upon "the evidence obtained by the District in connection with its investigation and admissions by Petitioner." However, there is nothing in the record to support respondent's determination other than a copy of a January 17, 2002 letter that petitioner wrote to respondent's director of pupil personnel services and an affidavit of Yianni's kindergarten teacher.

Petitioner's letter merely restates petitioner's position as set forth in this appeal: i.e. that he and his wife have separated as of December 3, 2001; that his wife and children have been temporarily [emphasis added] residing with the children's grandmother in Hicksville; that petitioner has been and continues to be a resident at the family's legal address in respondent's district; and that the separation has not in any way affected his custodial rights over the children. Inasmuch as petitioner alleges the temporary nature of the children's living arrangements, such statements, standing alone, do not establish that the children are not district residents. A residence is not lost until it is abandoned and another is established through action and intent, and a person's temporary absence from one's district of residence does not necessarily constitute establishment of a residence in the district where temporarily located or abandonment of one's permanent residence (Appeal of Schwartzburt, 37 Ed Dept Rep 139, Decision No. 13,825).

The only other evidence in support of respondent's determination is the affidavit of Yianni's teacher in which she states that, in or about early November 2001, she overheard a child in her class say that he went to Yianni's house in Plainview to "trick-or-treat" on Halloween, and that when he arrived at the door a person he identified as Yianni's aunt answered and told him that Yianni lived in Hicksville, and that shortly after the child said this several children in the class started chanting out load "Yianni lives in Hicksville." This statement, dependant on hearsay and unsupported by further proof, is insufficient to form the basis for a determination that petitioner"s children are not residents of respondent's district. Although the teacher's affidavit indicates that she reported the incident to her principal, who in turn indicated that she would report the situation to the appropriate district-level administrators, there is nothing else in the record to indicate that any further investigation was done.

Petitioner contends that his residence within respondent"s district remains the only legal and permanent address for his family until such time as he and his wife can make a determination with respect to their separation and their efforts to reconcile their differences. On the record before me, I find that there is insufficient evidence to support respondent's determination that petitioner's children are not district residents.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately admit Anastasia and Yianni Leontakianakos, as residents of the Plainview-Old Bethpage Central School District, to attendance at the district"s schools.

END OF FILE

---