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Decision No. 14,941

Appeal of MICHAEL DUNCAN, on behalf of his son MATTHEW, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

 

 

(August 26, 2003)

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Christine M. LaPlace, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") that his son, Matthew, is not a district resident.  The appeal must be dismissed.

Petitioner claims that he lives with Matthew on Rosedale Road in North Woodmere ("the North Woodmere address"), within respondent"s district.  Petitioner initially enrolled Matthew in respondent"s schools in September 2001.  In December 2002, respondent"s administrative assistant responsible for student registration learned that when Matthew"s teachers attempted to telephone petitioner at the North Woodmere address, they were initially told that petitioner no longer lived there.  However, when callers revealed that they were from the district, they were told that petitioner would get back to them. This information prompted respondent"s administrative assistant to commence an investigation. 

By searching public records, respondent"s investigator discovered that petitioner"s driver"s license and car registrations reflected an address on 149th Avenue in Rosedale, Queens ("the Queens address").  Respondent"s investigator then conducted surveillance at both the North Woodmere and Queens addresses on numerous occasions over the course of several months, beginning in January 2003. 

On January 6, 2003, the investigator conducted surveillance at the North Woodmere address between 5:30 and 9:30 a.m.  During that period, no one was observed leaving the home and no cars were parked in the driveway.  The investigator later learned that petitioner"s son was at school that day.  On January 22, 2003, the investigator arrived at the Queens address at 5:30 a.m. and observed both of petitioner"s cars there.  In addition, the investigator observed Matthew leave the house at 8:48 a.m. with a female.  The investigator also conducted surveillance at the Queens address on the following school mornings: January 24, 27, 30, 31; February 4 and 5; March 14, 17 and 24; April 1, 2, 14, 19; and May 2 and 5.  On all but two days, the child was observed leaving the Queens house around 9:00 a.m., usually with petitioner.  On the two days the child was not seen, the investigator later learned that the child either arrived late to school or was home sick.  

Although the record is unclear, at some point, respondent"s administrative assistant informed petitioner by letter that she had concluded that Matthew was not a district resident and would be removed from the district"s rolls, effective February 28, 2003. On March 31, 2003, respondent"s administrative assistant met informally with petitioner and attempted unsuccessfully to resolve the matter.  By letter dated April 16, 2003, respondent"s administrative assistant informed petitioner that respondent would hold a residency hearing on May 6, 2003.

At the hearing conducted by respondent"s designee, respondent"s investigator detailed the results of his investigation.  Petitioner testified that he lived at the Queens home until he separated from his wife in 2000 and now lives with Matthew in North Woodmere.  Petitioner further explained that he continues to operate his business from the basement of the Queens home.  He also maintained that Matthew sometimes stays overnight with his mother in Queens.  Petitioner introduced a copy of his lease and a phone bill to support his residency claim.

By letter dated May 6, 2003, the hearing officer informed petitioner that he had determined that Matthew was not a district resident.  The letter cites, among other evidence, the "[e]xtensive" surveillance showing that both cars registered to petitioner "always were parked in front of the [Queens] address and never at the [North Woodmere] address."  The letter further states that Matthew was consistently observed leaving the Queens address on school mornings, except for two occasions when the investigator subsequently learned that Matthew had been either absent from or late to school.  The letter also notes that although petitioner submitted a lease for the North Woodmere residence owned by his sister, he had not submitted any proof that he paid rent.  This appeal ensued.

Petitioner contends that he and his son live at the North Woodmere residence, which he rents from his sister who lives in Florida.  Although petitioner maintains that he has not lived at the Queens address since separating from his wife in 2000, he admits that both he and Matthew spend time there.  Petitioner claims that he is frequently at the house because he runs his business from the basement.  In addition, he claims that Matthew sometimes spends two days per week with his mother in Queens and also stays there when petitioner is out of town on business.

In support of his residency claim, petitioner submits a copy of his lease; a notarized letter from his sister confirming that he rents the house; a series of six rent receipts, each dated the first of the month; a notarized letter from petitioner"s wife confirming, among other things, that Matthew lives with petitioner in North Woodmere, but sometimes stays with her in Queens; a phone bill in petitioner"s name for the North Woodmere address; and petitioner"s driver"s license, issued April 30, 2003, reflecting the North Woodmere address.  Petitioner requests a determination that Matthew is a district resident entitled to attend respondent"s schools without payment of tuition.

Respondent contends that the hearing officer properly determined that petitioner is not a district resident.  Respondent also requests that I disregard any evidence submitted by petitioner that was not introduced at the May 6, 2003 residency hearing.  In addition, by letter dated July 31, 2003, respondent requests permission to submit two affidavits establishing that the North Woodmere residence has recently been placed on the market for sale. 

In response to respondent"s submission, petitioner claims that he recently "employed the services" of a realtor for the purpose of subleasing a portion of the North Woodmere house.  Although it is not clear whether petitioner disputes that the house is currently for sale, petitioner maintains that if the house is sold, he will find alternative housing in the district.  He also states that he has been "assured" that he will be able to renew his lease in January 2004.

Preliminarily, I note that because respondent"s supplemental affidavits are relevant to this appeal and the events occurred after respondent submitted its answer, I will accept them pursuant to 8 NYCRR "276.5 (Appeal of J.F., 42 Ed Dept Rep    , Decision No. 14,800; Appeal of Fusco, 39 id. 836, Decision No. 14,396).

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 J.M., 42 Ed Dept Rep    , Decision No. 14,783; Appeal of L.W., 41 id. 372, Decision No. 14,717; Appeal of Lapidus, 40 id. 21, Decision No. 14,408). Residence 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 Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Smith, 39 id. 67, Decision No. 14,175; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).  Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Silvestro, supra; Appeal of Monahan, 39 Ed Dept Rep 188, Decision No. 14,209; Appeal of Ifill, 38 id. 97, Decision No. 13,992).  In an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep 409, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261) and demonstrating a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra).

     Petitioner has failed to demonstrate that his son is a district resident.  Respondent"s surveillance provides compelling evidence that petitioner and his son do not reside in the district.  On the approximately two-dozen occasions over the course of four months when surveillance was conducted at the Queens address, petitioner"s son was consistently observed leaving the home in the morning, usually with petitioner.  Further, the investigator testified at the hearing that although he conducted surveillance on a number of occasions at the North Woodmere address, he never observed Matthew at that location. 

Although the child"s presence at the Queens residence is not necessarily inconsistent with petitioner"s claim that the child sometimes stays with his mother there, the frequency and consistency of the child"s presence in Queens compels the conclusion that the child is not a district resident.  Petitioner"s assertion that the surveillance is unreliable because it includes no observations of Matthew after school does not overcome the weight of the observations.  In addition, petitioner fails to explain why both of his cars were consistently observed in Queens or why it appears that petitioner also consistently spent the night at that location.

Moreover, I find petitioner"s proof of his own residency in North Woodmere unpersuasive.  Although petitioner submits a copy of a purported lease, petitioner presents no cancelled checks establishing that he paid rent.  Further, I find that the "rent receipts," which are uniformly dated the first of each month and were not presented at the residency hearing, have little probative value.  Petitioner fails to explain how he is able to pay the rent in cash, given that his sister lives in Florida.  

Petitioner provides little additional proof to substantiate that he lives at the North Woodmere address.  Petitioner"s driver"s license reflecting the North Woodmere address was issued shortly before the residency hearing.  The only other documentary proof submitted by petitioner is a single phone bill reflecting the North Woodmere address.  Petitioner"s limited proof of residency fails to overcome the substantial weight of respondent"s evidence showing the child"s consistent presence in Queens.

Although petitioner places much emphasis on the fact that the hearing officer"s May 6, 2003 determination incorrectly identifies the house number of the address in Queens, I do not accord any weight to this discrepancy.  The hearing officer explains that he drafted the decision relying exclusively on his notes, which apparently incorrectly noted the address.  However, he notes that the hearing transcript repeatedly identifies the address correctly.

Petitioner also points out that the determination erroneously states that the utility bill submitted by petitioner at the hearing was in his wife"s name and that the utilities at the Queens residence were in petitioner"s name.  In fact, the hearing evidence reflects the opposite - the utility bill from the North Woodmere residence is in petitioner"s name, while the utilities for the Queens residence are in petitioner"s wife"s name.  However, the hearing officer acknowledges the error.  These errors do not alter the fact that the proof overwhelmingly establishes that petitioner and his son do not reside in the district.

In light of this disposition, I decline to address the parties" remaining contentions.

 

THE APPEAL IS DISMISSED.

END OF FILE