Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Lawrence Union Free School District regarding residency.

Decision No. 15,264

(July 29, 2005)

Ehrlich, Frazer & Feldman, attorneys for respondent, Michael Perna, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Lawrence Union Free School District ("respondent") that her son is not a district resident. The appeal must be sustained.

Petitioner's son is 17 years old and attends Lawrence High School. Petitioner resided with her son at an address on Fiske Street, Woodmere, within respondent's district, until her divorce and eviction from those premises in 2001. Petitioner moved with her son to an address at Pacific Avenue in Cedarhurst, also within respondent's district, where they lived until May 2003. When asked by the district to update emergency information in September 2004, petitioner's son continued to report this as his home address.

On September 7, 2004, a notice to petitioner at the Pacific Avenue address was returned to respondent stamped "forwarding time expired." On September 15, 2004, respondent commenced an investigation. An interview that day with the occupants at the Pacific Avenue address confirmed that petitioner vacated the premises in May 2003. An Internet search identified petitioner's residence at East Broadway, Hewlett, outside respondent's district. On October 14, 2004, respondent's residency designee mailed a notice to petitioner at the East Broadway address, informing her that her son would be excluded from school if documentation of residency was not provided by October 22, 2004. Receiving no response, respondent's designee sent a copy of the October 14, 2004 letter home with petitioner's son.

On October 20, 2004, respondent's residency designee observed petitioner's son leaving the East Broadway house at 7:29 a.m. and driving a white Infinity, registered to petitioner, to Lawrence High School, and returning to the East Broadway address in the same vehicle at 12:35 p.m. On October 21, 2004, the district's investigator observed petitioner's son leaving the East Broadway address at 7:25 a.m., driving the same vehicle to Lawrence High School, and arriving back at 2:45 p.m.

By letter dated October 22, 2004, respondent's residency designee summarized the district's investigation and informed petitioner that her failure to respond to the October 14, 2004 notice to provide documentation of residency had resulted in a determination that her son is not a resident and would be excluded from school on October 25, 2004. The notice also advised petitioner of her right to appeal the determination. This appeal ensued. Petitioner's request for interim relief was granted on December 9, 2004.

Petitioner asserts that she was evicted from her residence on Fiske Street in 2001, and from her Pacific Avenue home in 2003. Petitioner claims that her belongings have been placed in storage and that she was forced to split up her family, sending her son to live with a family on Bayview Avenue in Cedarhurst, within respondent's district, until October 2004. Petitioner contends that she and her son now live together with another family at an address on Bryant Street, within respondent's district. Petitioner admits that her son spends afternoons with his sister at his sister's residence on East Broadway, Hewlett, outside respondent's district, but denies that he resides there. Petitioner contends that her work requires out-of-state travel for several days at a time and that she arranges for her son to stay with his sister on those occasions to provide supervision.

Respondent contends that petitioner and her son reside with her daughter at the East Broadway address in the Hewlett-Woodmere Union Free School District. Respondent also contends that the petition must be dismissed because petitioner concedes she has no permanent residence within its district and has not alleged that she intends to permanently reside there. Respondent further asserts, interalia, that petitioner failed to effectuate proper service, failed to participate in its residency investigation, lacks standing to appeal because she is a nonresident, and failed to inform respondent that she was no longer a resident. Respondent also objects to petitioner's reply.

An individual may not maintain an appeal pursuant to Education Law �310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311).

In this case, petitioner's son has been enrolled in and attended respondent's schools for the past eleven years, as respondent accepted petitioner's past assertion of residency. Additionally, respondent's letter to petitioner, dated October 22, 2004, notified petitioner of her right to appeal the determination to the Commissioner of Education (Appeal of Bermudez, 41 Ed Dept Rep 355, Decision No. 14,712; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621). Under these circumstances, I find that petitioner may bring this appeal on her son's behalf to challenge respondent's residency determination.

Section 275.9 of the Commissioner's regulations requires that an affidavit of personal service be transmitted to my Office of Counsel within five days after the service of any pleadings or paper. The record indicates that the petition was properly served on respondent on November 22, 2004, but the affidavit of service was not received by my Office of Counsel until November 29, 2004. Respondent, however, expresses no prejudice from petitioner's filing delay. Accordingly, I find such delay to be harmless error (seeAppeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of McSween, 42 id. 59, Decision No. 14,775).

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

In support of her position that her son resides with her in respondent's district, petitioner produced an affidavit of a resident of Bryant Street in respondent's district, stating that petitioner and her son reside there. Petitioner also provides an explanation for her son's presence at the East Broadway residence of her daughter.

Respondent's surveillance consisted of only two days in which petitioner's son was observed at his sister's residence, but no surveillance was done of petitioner herself. The result of this surveillance, for which petitioner offered an explanation, is, therefore, insufficient to overcome the presumption that the student resides with his mother.

Respondent's limited surveillance and other evidence are not persuasive proof that petitioner resides outside the district. Accordingly, I am constrained to find, on the record before me, that respondent's determination that petitioner's son is not a district resident is based on insufficient evidence.

THE APPEAL IS SUSTAINED.

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