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Decision No. 16,093

Appeal of REGINA BARNES, on behalf of her daughter ANASA REEDE, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,093

(July 9, 2010)

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

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

Anasa attended high school in respondent’s district.  On the morning of October 1, 2009, respondent’s residency investigator observed Anasa walking to a bus stop from an out-of-district location and boarding a bus to respondent’s high school.  An investigation was commenced and as a result, respondent’s personnel notified petitioner that it had been determined that Anasa was not a district resident, and advised her that she could provide proof of residency.

On or about November 12, 2009, petitioner met with respondent’s Administrative Assistant for Central Registration and offered cable bills as proof of her residency on Hawthorne Avenue in the district.  By letter dated November 12, 2009, the district advised petitioner that its original residency determination would stand.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 21, 2009.

Petitioner contends that she and Anasa reside on Hawthorne Avenue in respondent’s district.  In support of her contention, petitioner submits, among other things, cable bills for service at the Hawthorne Avenue address and legal papers naming her as a respondent in what appears to be a legal proceeding involving the Hawthorne Avenue property.  In addition, petitioner maintains that another daughter (Anasa’s sister) lives at the out-of-district building that Anasa was seen leaving, and that Anasa – who baby-sits for her sister - “occasionally” stays overnight there.  Petitioner, therefore, requests a determination that Anasa is a resident of respondent’s district and is entitled to attend its schools without the payment of tuition.

Respondent denies petitioner’s allegations and asserts that its determination that Anasa is not a district resident is not arbitrary or capricious.  Respondent also contends that the petition is defective due to a lack of verification and objects to 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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).

The petition submitted to my Office of Counsel contains a verification which was notarized on December 9, 2009, which is two days after the petition was signed and one day after the petition was apparently served on respondent.  It is well settled that where, as here, a petitioner is proceeding without the representation of counsel, a liberal interpretation of the rules is applicable, particularly when there is no evidence of prejudice to the opposing party (seee.g.Appeal of Coke, 46 Ed Dept Rep 110, Decision No. 15,474; Appeal of Skugor, 44 id. 1, Decision No. 15,075).  Accordingly, while petitioner should have provided respondent with a copy of her verification, I will not dismiss her appeal on this basis alone (seeAppeal of Carangelo, 49 Ed Dept Rep __, Decision No. 16,006; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  Furthermore, although it appears that petitioner did not verify her petition prior to its service, I find this defect to be de minimusand decline to dismiss it on that basis.

Turning to the merits, 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

I am unable to conclude on the record before me that respondent’s residency determination was arbitrary or capricious.  Petitioner submitted cable bills which were addressed to a P.O. box and indicated that the service was scheduled to be disconnected at or around the time of this appeal.[1]  In addition, the legal papers submitted by petitioner do not show that she is currently living at the Hawthorne Avenue address.  On the other hand, during respondent’s residency investigation, the investigator observed Anasa leaving or coming from an out-of-district location every weekday morning from October 2 through October 9, 2009.  In addition, the investigator conducted surveillance on a number of mornings at the Hawthorne Avenue address, but did not observe petitioner and/or Anasa on any of these occasions.  While petitioner disputes some of respondent’s findings and conclusions, she does not dispute that it was Anasa that was observed leaving the out-of-district location, and her explanation for this does not account for the number and consistency of these observations.  In light of respondent’s surveillance and other evidence in the record, therefore, I am unable to find any reason to disturb respondent’s determination.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Anasa’s behalf and to present new information and evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioner, in her reply, contends that cable service is still being provided at the Hawthorne Avenue address but does not submit any additional proof.