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Decision No. 15,768

Appeal of ALZIRE PIERRE, on behalf of her sons JONATHAN and JOSHUA LEVY, from action of the Board of Education of the Elmont Union Free School District regarding residency.

Decision No. 15,768

(June 26, 2008)

Colum Nugent, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her sons are not district residents.  The appeal must be sustained.

Petitioner asserts that she and her sons reside on Sewanee Avenue in Elmont within the district, and that her sons have attended the district’s schools since September 2004.  As proof of residency, petitioner submits copies of the following documents with her name and the Sewanee Avenue address:  her checking account statement from November–December, 2006; pay stubs from January and February 2007; a T-Mobile bill from August 2007; an electric bill from July 2007; and her driver’s license issued July 2001.  A tenant at that address also submitted an affidavit stating that petitioner has resided there with her sons since their birth.  Petitioner states that the boys spend two weekends a month with their father, an active duty Army Reserve Officer who resides outside the district.

The record does not include a written residency determination by respondent.  Presumably, at some juncture, respondent decided to exclude the boys because this appeal ensued, and petitioner requests that the boys be permitted to return to the Clara H. Carlson School and seeks a determination that they are district residents entitled to attend the district’s schools tuition-free.  By letter dated September 21, 2007, respondent’s counsel confirmed that the boys were attending school in the district and would be permitted to do so until a final decision was rendered in this appeal.

I must first address a procedural issue.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (seeAppeal of the City School Dist. of the City of Plattsburgh, 45 Ed Dept Rep 350, Decision No. 15,345; Appeal of Scanlon, et al., 41 id. 114, Decision No. 14,632; Appeal of Bronico, 32 id. 54, Decision No. 12,755).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Bonham, 44 Ed Dept Rep 179, Decision No. 15,140).

In this case, petitioner properly served the petition on August 20, 2007, but the petition was defective in other respects.  By letter dated August 24, 2007, my Counsel’s Office returned it to petitioner.  That letter also informed respondent that it was not obligated to serve an answer at that time, but that the time to answer would commence with service of a new petition, which occurred on September 17, 2007.  Respondent, however, waited until November 7, 2007, to request an extension of time to answer, then submitted an unverified answer on November 30, 2007, and did not submit a properly verified answer until December 4, 2007.  While respondent’s attorney asserts that the procurement of testimony from an investigator took longer than expected, there is no explanation why a request for an extension or an answer could not have been timely submitted.  Accordingly, I find no basis to accept the late answer, and the factual allegations set forth in the petition are deemed true (8 NYCRR §275.11; Appeal of Bonham, 44 Ed Dept Rep 179, Decision No. 15,140).

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).

In the absence of contrary evidence, petitioner has supplied sufficient documentation to demonstrate her children’s residency in the district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Jonathan and Joshua Levy to attend school in the Elmont Union Free School District without the payment of tuition.
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