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Decision No. 15,790

Appeal of JOSEPH LONGOBARDI, on behalf of his children ARIANNA and JOSEPH, from action of the Board of Education of the City School District of the City of Newburgh regarding residency.

Decision No. 15,790

(July 25, 2008)

Russell Law Office, attorneys for petitioner, Richard A. Russell, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Jillian E. Jackson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Newburgh (“respondent” or “board”) that his children, Arianna and Joseph, are not district residents.  The appeal must be dismissed.

Petitioner claims that he lives on Route 9W in New Windsor (“New Windsor address”), within respondent’s district, and that his children have attended respondent’s schools since 2004.

According to respondent, petitioner’s children attended its schools tuition-free until the end of the 2006-2007 school year, when a question arose as to petitioner’s residency.  On or about June 21, 2007, petitioner’s sister submitted a handwritten letter to the district stating that she lived at the New Windsor address and that petitioner’s children “stay at [her] house three to four days in the school week.”

Thereafter, petitioner met with respondent’s deputy superintendent and his children were enrolled in respondent’s district as tuition-paying nonresident students.  On September 21, 2007, the deputy superintendent sent a letter to petitioner at an out-of-district address in Cragsmoor, stating that his first tuition payment was due on October 22, 2007.  By letter dated November 16, 2007, the deputy superintendent notified petitioner that, because the October 22, 2007 tuition payment had not been received, his children would be excluded from respondent’s schools effective November 21, 2007. 

On March 19, 2008, respondent’s assistant superintendent of finance (“assistant superintendent”) notified petitioner by letter that the district had not yet received any tuition payments and that if payment was not received by March 28, 2008, petitioner’s children would be excluded from school effective March 31, 2008.[1]

According to respondent, on or about March 18, 2008, petitioner’s attorney informed the assistant superintendent that petitioner had relocated to the New Windsor address “prior to Christmas.”  Based on this information, by letter dated April 1, 2008, respondent requested proof of petitioner’s residency “including but not limited to a copy of your driver’s license, tax returns for 2007, utility bills, a mortgage or lease, and any other documentation establishing an in-District residence.”  In response, petitioner produced a copy of an agreement with his sister for the lease of the New Windsor address.

By letter dated April 15, 2008, respondent informed petitioner of its determination that he was not a district resident and that his children would be excluded from school effective April 25, 2008.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 1, 2008.

Petitioner contends that he is a district resident and that this children are therefore entitled to attend respondent’s schools tuition-free.  Respondent argues that petitioner has failed to establish residency within its district.

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).

Other than the assertions contained in his verified petition, petitioner has submitted no documentary evidence to support his claim of residency.  Indeed, the only evidence in the record before me suggesting that petitioner may reside in respondent’s district is the lease agreement between petitioner and his sister.  However, that document contains no start and/or end date for the lease and states that the monthly rent is “$000.00 per month” and that petitioner furnished “$000.00” as a security deposit.

In opposition, respondent has introduced evidence of surveillance conducted on the New Windsor address on 19 mornings between April 8 and May 16, 2008, starting as early as 5:50 a.m. and concluding as late as 8:30 a.m.  In an affidavit, respondent’s investigator stated that he “never observed the petitioner or his children at the residence.  Nor have I ever observed the car that I know petitioner drives the children to school in.”  Respondent also submitted a sworn statement from its acting superintendent stating that “[o]n each day that surveillance was conducted, [petitioner’s] children attended school.”  Petitioner did not submit any evidence to rebut respondent’s surveillance findings.

Respondent also submitted a May 22, 2008 affidavit from Arianna’s teacher stating:

During a recent science lesson, Arianna told the class that she had seen a bear by her house.  I asked her where her house is, because it is unusual to see bears in Newburgh.  Arianna responded that she lived in Ulster County, 3 houses down from the Cragsmoor Post Office.

Respondent notes that its district is located in Orange County, not Ulster County.

Accordingly, based on the record before me, I cannot find respondent’s determination to be arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on his children’s behalf, should circumstances change, and to present any new information for the district’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE

[1]Together with its verified answer, respondent submitted an affidavit from its acting superintendent, who explains that after the deputy superintendent left the district on November 30, 2007, “no action was taken against Petitioner with respect to the enrollment of his children until March of 2008.”