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Decision No. 14,777

Appeal of VERA VAIRO, on behalf of her son PAUL GETSOS, from action of the Board of Education of the Eastchester Union Free School District regarding residency.

Decision No. 14,777

(August 21, 2002)

Charles J. Diven, Jr., Esq., attorney for petitioner

Keane & Beane, P.C., attorneys for respondent, Susanna L. Mould, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District ("respondent") that her son, Paul Getsos, is not a district resident. The appeal must be dismissed.

Petitioner claims to reside with her son and parents at a Bronson Avenue home in Scarsdale, within respondent"s district. Paul was enrolled in respondent"s district as a kindergarten student for the 2001-2002 school year. At some point during the school year, district officials began to suspect that petitioner and her son did not reside in the district. As a result, respondent"s director of pupil personnel services hired an investigation agency to investigate petitioner"s residency.

On Monday, March 4, 2002, an investigator conducted surveillance at the Bronson Avenue home between the hours of 7:30 and 9:00 a.m. and did not see any sign of petitioner, her son, or petitioner"s car at the location. On Thursday, March 7, 2002, at approximately 3:20 p.m., an investigator observed an older woman exit the Bronson Avenue address and walk to the corner of Bronson and Warwick Avenue and pick up a child from the bus and return to her home with the child. At 6:42 p.m., the investigator observed petitioner"s car pull into the driveway, and then depart at 7:03 p.m. The investigator followed the car to an apartment building on North Terrace Avenue, in Mount Vernon, outside respondent"s district, and observed petitioner and her son enter the building. The following morning, an investigator observed petitioner leave the building with her son and enter her car, which was parked in a lot across the street. The investigator followed the car and ultimately observed petitioner drop off Paul at the Waverly Elementary School shortly before 9:00 a.m. On Wednesday, March 13, an investigator waited outside the North Terrace Avenue address from 5:50 a.m. to 9:15 a.m. The investigator observed petitioner"s car parked in the lot across the street from the building during that time, but did not see either petitioner or her son exit the building. The investigator later learned that Paul was absent from school that day. On both Tuesday, March 19 and Thursday, April 4, an investigator observed petitioner leave the North Terrace Avenue building in the morning with her son and ultimately drop him off at the Waverly Elementary School before 9:00 a.m. The investigation also revealed a "John Vairo" with utility service for apartment 6B and a telephone listing in petitioner"s name at the North Terrace address.

By letter dated April 5, 2002, respondent"s director of pupil personnel services informed petitioner that the district had evidence that she and her son did not reside at the Bronson Avenue address and that unless the district received satisfactory documentation of petitioner"s residency by April 10, 2002, her son would be removed from enrollment. By letter dated April 17, 2002, petitioner"s attorney responded by submitting a copy of petitioner"s driver"s license, a medical insurance statement and a life insurance invoice, all reflecting the Bronson Avenue address, as well as a note from Paul"s pediatrician indicating that Paul lived at the Bronson Avenue address. By letter dated April 19, 2002, respondent"s director of pupil personnel services informed petitioner that she failed to provide satisfactory proof of residency and that her son would be removed from enrollment effective April 26, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on April 30, 2002.

Petitioner contends that Paul lives with her and his maternal grandparents at the Bronson Avenue address. In support of her contention, she submits the same documentation provided by her attorney to the district. For relief, petitioner seeks a determination that her son is a district resident entitled to attend school in the district tuition-free.

Respondent contends that it properly determined that petitioner and her son are not district residents. In support of that contention, respondent submits a copy of the investigative report detailing the results of the surveillance conducted between March 4, 2002 and April 4, 2002. Respondent also submits an affidavit from a bus monitor stating that early in the school year, Paul was dropped off by car at the bus stop, even though the Bronson Avenue residence is a few doors from the stop. She also states that in January 2002, Paul stopped coming to the bus stop, and when she questioned him about the change, he responded that it took a "long time" to get to the bus stop. When the monitor pointed out that his grandmother"s house was a few doors from the stop, Paul responded that he did not sleep at his grandmother"s house.

Initially, I must address a procedural issue. By letter dated May 21, 2002, respondent requested permission to file an affidavit from another bus monitor stating that on May 2, 2002, she escorted Paul to the Bronson Avenue address because no one was present to pick him up at the bus stop. The monitor was greeted by Paul"s grandmother who appeared surprised to see them and stated that her daughter had not called to tell her that Paul would be in school that day. The monitor later learned that Paul had been absent from school for the preceding three days. Since petitioner has not responded or objected to this submission, and the affidavit refers to information respondent discovered after filing its answer, I have accepted the submission.

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 Boyd, 41 Ed Dept Rep ___, Decision No. 14,682; Appeal of Wilkinson, 41 id. ___, Decision No. 14,637; Appeal of Pierre, 40 id. __, Decision No. 14,551). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Oliver, 41 Ed Dept Rep , Decision No. 14,603; Appeal of D.F., 39 id. 106, Decision No. 14,187).

Based on the record before me, I find no basis to disturb respondent"s determination that petitioner and her son are not district residents. Respondent submitted considerable proof suggesting that petitioner and her son reside outside the district. Although petitioner has submitted limited documentation reflecting residency at the Bronson Avenue address, she has not offered any explanation to counter respondent"s proof that she was observed on a number of occasions transporting Paul to school from an address outside the district and also has a phone listing at that location. Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Finkel, 41 Ed Dept Rep _, Decision No. 14,619; Appeal of Lilly, 39 id. 601, Decision No. 14,324). Furthermore, the burden is on petitioner to allege and prove facts upon which relief may be granted, not on the respondent to rebut conclusory allegations (Appeal of Finkel, supra; Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). In view of petitioner"s failure to offer any explanation for her presence at the North Terrance Avenue address, I cannot conclude that respondent acted irrationally in determining that petitioner and her son are not district residents.

THE APPEAL IS DISMISSED.

END OF FILE