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Decision No. 15,601

Appeal of STEPHANIE MARSTON and LOUIS GUNDERSON, on behalf of their son MICHAEL GUNDERSON, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Appeal of STEPHANIE MARSTON, on behalf of her brother ROBERT MARSTON, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 15,601

(June 28, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

AHEARN, Acting Commissioner.-In two separate appeals, petitioners challenge the determination of the Board of Education of the East Islip Union Free School District (“respondent”) that Michael Gunderson and Robert Marston are not district residents entitled to attend its schools tuition-free.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained.

Michael attends 9th grade and Robert attends 11th grade at respondent’s high school.  Petitioners Marston and Gunderson are Michael’s parents; petitioner Marston is Robert’s sister.  Petitioners maintain that they live with Michael and Robert on Rodney Avenue, Islip Terrace, within respondent’s school district.  The Rodney Avenue residence is owned by Ms. Kiesel, the mother of Robert and petitioner Marston.  Ms. Kiesel also owns a residence on Babylon Street , Islip Terrace, outside respondent’s school district.

By letter dated January 17, 2007, respondent’s assistant superintendent for instruction/personnel (“assistant superintendent”) informed petitioners that the district had obtained information indicating that petitioners were actually living at Babylon Street, rather than Rodney Avenue.  The letter stated that if petitioners failed to contact the assistant superintendent by January 24, 2007, Michael and Robert would be excluded from respondent’s schools after January 26, 2007.

By letter dated January 30, 2007, the assistant superintendent notified petitioners of her final determination that they were not district residents and that Michael and Robert would not be permitted to attend respondent’s schools tuition-free.  The letter noted that on January 29, 2007, petitioner Marston provided the high school attendance aide with a home telephone number that was for the Babylon Street residence.  This appeal ensued.  Petitioners’ requests for interim relief were granted on February 9, 2007.

Petitioners claim that Michael and Robert reside with them at Rodney Avenue, within respondent’s district, and that they are entitled to attend the district’s schools tuition-free.  Respondent argues that Michael and Robert reside at the Babylon Street address, outside the district, and are not district residents.

I must first address petitioners’ 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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  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).

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).

On the record before me, petitioners have met their burden of establishing the facts upon which they seek relief.  In support of their claim of residency, petitioners submitted a co-worker’s affidavit as well as electric and cable television bills for services provided to the in-district residence on Rodney Avenue.

Respondent notes that petitioner Marston’s driver’s license lists her address as Babylon Street, outside the district, and that petitioner Gunderson’s driver’s license lists his address as East Poplar Street in Central Islip, which is also outside respondent’s school district.  However, petitioners explain in their reply that they have not updated their licenses to reflect the Rodney Avenue address because their licenses have not yet expired.

Respondent points out that petitioners’ January 2007 electric bill shows identical actual meter readings for November 2006 and January 2007.  Respondent maintains that this is evidence that no electricity was used at the Rodney Avenue address during that two-month period during which petitioners claim to have resided there.  Petitioners’ reply explains that the November 2006 and January 2007 meter readings on their electric bill were inaccurate because the meter at Rodney Avenue was broken.  Petitioners claim that a new meter has since been installed and submitted an updated electric bill indicating that electricity was in fact used at Rodney Avenue between January and February 2007.

In September 2006, in connection with another family who is not a party to these appeals, respondent received a landlord’s affidavit for the Rodney Avenue address, which asked for the names of “all persons living in the same household.”  While petitioners were not listed as residing at Rodney Avenue, Ms. Kiesel and her husband were so listed.  In the “Landlord Information” section of the affidavit, however, Ms. Kiesel’s address was listed as Babylon Street. Petitioners’ reply states that Ms. Kiesel’s residence was accurately listed as Babylon Street.  Petitioners maintain that Ms. Kiesel’s name was added to the list of current residents at Rodney Avenue without her knowledge after she signed the affidavit on September 1, 2006.

Also, according to respondent, in the fall of 2006, a neighbor of Ms. Kiesel’s Babylon Street residence notified the district that Robert was living there with his mother, that she had seen Robert board an East Islip school bus, and that both Michael and Robert were “often seen” at Babylon Street.  The neighbor also told the district that on November 2, 2006, a man who answered the door at Babylon Street identified himself as Robert’s father and indicated that Robert lived there.  Petitioners also dispute this report.  They note that Robert’s step-father, Brian Kiesel, lives at Babylon Street.  With their reply, petitioners submitted an affidavit from Brian Kiesel stating that he was not visited by the neighbor as alleged by respondent.  His affidavit also states that Robert lives at Rodney Avenue with petitioners.

Moreover, petitioners explain in their reply that because Rodney Avenue and Babylon Street are only two miles apart, family members are often present at either address.  For example, Robert frequently visits Babylon Street after school to help his mother before returning to Rodney Avenue.

Given petitioners’ evidence of residence in respondent’s school district, and respondent’s lack of proof to the contrary, I conclude that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that respondent permit Michael Gunderson and Robert Marston to attend school in the East Islip Union Free School District without the payment of tuition.

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