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Decision No. 15,424

Appeal of HELEN WU, on behalf of her son RICHARD, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

 

Decision No. 15,424

 

July 7, 2006

 

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

 

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

Petitioner leased an apartment on Stewart Ave., New Hyde Park, in respondent’s district from August 1, 2004 to August 1, 2006.  Richard has attended, and plans to attend, respondent’s schools at least until August 1, 2006, when the lease terminates.

In November 2005, respondent retained an investigator to conduct surveillance on petitioner and her son.  On November 2, 2005 at approximately 6:00 a.m., respondent’s investigator arrived at the New Hyde Park address but did not observe petitioner’s vehicle, petitioner or Richard.  On November 9, 2005 at approximately 6:00 a.m., the investigator conducted surveillance on petitioner’s parent’s address in Floral Park, outside respondent’s district, but failed to observe Richard.  On December 6 and 15, 2005 and January 18, 2006, the investigator attempted but failed to follow Richard home from school.  On January 25, 2006, the investigator followed Richard from school to the Floral Park address and observed him enter his grandparent’s apartment with a key.

By letter dated January 27, 2006, addressed to petitioner at the Floral Park address, the district attendance teacher informed petitioner that an investigation demonstrated that Richard was not a district resident and was therefore not entitled to attend respondent’s schools on a tuition-free basis.  The letter informed petitioner that she was entitled to request a hearing at which she would have the opportunity to submit information concerning her residency.

Petitioner met with the district attendance teacher on February 6, 2006.  By letter of the same date, the district attendance teacher notified petitioner that Richard was excluded from respondent’s high school as of February 3, 2006 because he resided outside the district in Floral Park.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 6, 2006.

Petitioner contends that she resides within respondent’s district but has assumed responsibility for maintaining her parent’s apartment in Floral Park while they are abroad.  Petitioner contends that the residency notice was insufficient because it was sent to her parent’s Floral Park residence.  Petitioner also alleges that the district attendance teacher initially refused to grant her request for a hearing and thus violated her right to due process.  Petitioner contends that she was not prepared for the hearing and was denied the opportunity to submit evidence that Richard was a district resident.  Finally, petitioner alleges that the district attendance teacher misconstrued what she said.  Petitioner requests that I determine that Richard is a district resident.

 

Respondent alleges that petitioner fails to state a claim and has failed to meet her burden of proof.  Respondent alleges that petitioner and her son reside outside the district in Floral Park, and that petitioner has failed to contradict the findings of the district’s investigator.  Respondent contends that it acted lawfully in excluding Richard from its schools.

 

     Initially, I must address petitioner’s reply.  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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

Based on the record before me, I find insufficient evidence to support respondent’s determination that petitioner is not a district resident.  Respondent’s investigator observed petitioner’s son at the Floral Park address on only one occasion.  I find this observation to be inconclusive and unpersuasive in view of petitioner’s statement that she has temporarily assumed responsibility for maintaining her parent’s apartment.  This surveillance of the Floral Park address does not, therefore, establish that petitioner and her son reside there.  Moreover, the limited surveillance of the New Hyde Park residence, does not refute petitioner’s claim that she and her son reside there.  On the record before me, I find that respondent’s residency determination is based upon insufficient evidence and is therefore arbitrary and capricious.

In light of this determination, I need not address petitioner’s remaining contentions.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent permit Richard Wu to attend school in the Great Neck Union Free School District without the payment of tuition.

END OF FILE