Appeal of ELIZABETH AVERSA, on behalf of her son MICHAEL, from action of the Board of Education of the Jericho Union Free School District regarding residency.

Decision No. 15,936

(June 29, 2009)

Law Office of Richard L. Reers, P.C., attorneys for petitioner, Richard L. Reers, Esq., of counsel

Ingerman Smith L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Jericho Union Free School District (“respondent”) that her son, Michael, is not a district resident.  The appeal must be dismissed.

In 2004, petitioner resided in respondent’s district and her children attended respondent’s schools.  In April 2005, petitioner purchased a new home located on Fox Lane, in Jericho, New York (“property”).  Prior to purchasing the property, petitioner allegedly conferred with a district employee to confirm that the property was in respondent’s district and was assured that it was.  Real estate agents also represented to petitioner that the property was located within respondent’s district.

In May 2005, petitioner completed a school district designation form and designated respondent’s district as the district in which her children would attend.  Petitioner’s children continued their education in respondent’s district and the Syosset Central School District (“Syosset”) remitted payment to respondent accordingly.

By letter dated May 23, 2007, petitioner was informed by a Syosset official that after conducting research, it determined that petitioner’s property was located wholly within Syosset.  The letter further stated that petitioner’s children, as residents of Syosset, were entitled to attend its schools, and that it would no longer remit payment to respondent pursuant to petitioner’s designation.  By letter dated August 13, 2008, respondent notified petitioner that her children could no longer attend its schools.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on September 5, 2008.

Petitioner contends that she resides within respondent’s district and seeks a determination that Michael is entitled to attend respondent’s schools without the payment of tuition.  Petitioner claims that respondent’s actions are illegal, arbitrary and capricious and barred by the doctrine of laches and equitable estoppel.  Petitioner further alleges that Michael’s safety will be jeopardized if he is compelled to attend Syosset.

Respondent maintains that petitioner is not a district resident.  Respondent also alleges that the service of petitioner’s memorandum of law was untimely, and therefore should not be considered.

I must first address petitioner’s memorandum of law.  Pursuant to §276.4 of the Commissioner’s regulations, petitioner was required to serve a memorandum of law within 20 days of service of her answer. There is no dispute that petitioner’s memorandum of law was served one day late.

The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  Petitioner’s counsel contends that the delay was caused by his inability to reach petitioner while she was undergoing medical treatment.  Under these circumstances, I find good cause for the delay and have considered petitioner’s memorandum of law.

In an appeal to the Commissioner, a 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; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Education Law §3203(1) provides:

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation on or before August first in any year and thereafter ... and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

To effect a valid designation under Education Law §3203(1), petitioner must establish that "the boundary line between two school districts intersects" her property. (Crowe, et al. v. MacFarland, et al., 138 AD2d 788; Appeal of Bd. of Educ. of the Harborfields Cent. School Dist., 41 Ed Dept Rep 15, Decision No. 14,597; Appeal of Bd. of Educ. of the Syosset Cent. School Dist., 38 id. 791, Decision No. 14,144).

On the record before me, I am unable to conclude that petitioner’s parcel is intersected by the boundary line between respondent’s district and Syosset.  The copy of the Nassau County Department of Assessment Land and Tax Map does not contain sufficient detail to indicate petitioner’s property is intersected by the boundary line.  In addition, the school district designation form signed by petitioner in 2005 does not state that petitioner’s property is intersected by the boundary line, but rather, states that the property is located on the boundary line.  Finally, respondent’s memo to Syosset in 2005 states that petitioner’s property is presently in Syosset and that she has an option because “the Jericho school line touches her lot.”   Accordingly, I find that petitioner has failed to demonstrate that the boundary line intersects her property and therefore she has failed to establish an entitlement to designate respondent’s district pursuant to Education Law §3203.

Further, while respondent’s mistake as to the actual school district in which petitioner’s residence was located is unfortunate, it does not bar respondent from later refusing to admit petitioner’s child.  Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  A mistake by a school district representing that a certain property is located within the district does not vest any legal right in such students to attend on a tuition-free basis (Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Prospero, 37 id. 62, Decision No. 13,804).

I also reject petitioner’s argument that respondent’s decision is barred by the doctrine of laches.  Laches is an equitable doctrine which bars the enforcement of a right where there has been unreasonable and inexcusable delay that results in prejudice to a party (Skrodelis v. Norbergs, 272 AD2d 316).  Respondent is not enforcing a right in this appeal, but rather is carrying out its legal obligation and fiduciary duty to its taxpayers to determine if petitioner is entitled under Education Law §3203 to designate its district as the school district her child may attend without payment of tuition.  Accordingly, on these facts I find that respondent is not barred by laches from correcting its prior error in allowing petitioner to make such a designation.

THE APPEAL IS DISMISSED.

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