Appeal of WAI FAN CHEUNG, on behalf of her daughter WING YI (JODIE) KWOK, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,104

(July 27, 2010)

Law Office of Ming Hai, PC, attorneys for petitioner, Ming Hai and Charles Jefferson Spraggins, Jr., Esqs., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq. of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her daughter, Wing Yi (Jodie) Kwok (“Jodie”), is not a district resident.  The appeal must be sustained.

Jodie is 15 years old and attends respondent’s high school.  When petitioner registered Jodie on September 4, 2009, she submitted an owner/lessor affidavit dated August 31, 2009 from her brother-in-law and a parent’s affidavit of custody dated September 4, 2009 from her husband.  Petitioner’s brother-in-law Hungcho Kwok (“Kwok”), attested that petitioner, Jodie and Jodie’s sister Yip Ling (“Ling”), reside with him in New Hyde Park, within the district, along with his wife and daughter.  Petitioner’s husband affirmed that Jodie resides with petitioner at Kwok’s home within the district and that petitioner has full custody, control and support of Jodie with decision making regarding food, housing, clothing, education, financial care and maintenance.  His affidavit states that petitioner is Jodie’s custodian and caretaker and that petitioner’s residence within the district is Jodie’s actual and only domicile.  He further affirmed that Jodie is not living with him because he has a trading company in Hong Kong, where he expects to reside until August 16, 2012.

By letter dated February 8, 2010, respondent’s registrar informed petitioner that Jodie is not a district resident and would be excluded from district schools effective February 23, 2010.  The letter further advised petitioner that she could meet with the registrar to present evidence of residency.  At a meeting on February 22, 2010, Kwok and Ling explained that petitioner was in Hong Kong for a medical emergency but would return the following week.  Ling submitted mail received by petitioner at the New Hyde Park address. 

On March 8, 2010, the registrar met with petitioner, Kwok and Ling, who interpreted for petitioner.  Petitioner explained that her travel to Hong Kong was necessary to care for her elderly mother.  By letter dated March 9, 2010, the registrar advised petitioner that Jodie was not entitled to attend district schools after March 12, 2010 because “during our meeting, you admitted that you are unable to reside full time in the school district, and must again return to Hong Kong where you actually reside.”  The registrar enclosed a bill for non-resident tuition due within 10 days and informed petitioner that she could appeal the determination to respondent.  By letter dated March 10, 2010 petitioner appealed to respondent alleging that “there was some misunderstanding” during her meeting with the registrar and explained that she told the registrar that she might need to go back to Hong Kong once more to settle the care for her mother but would come back immediately.  Petitioner claimed to be a resident of New Hyde Park on a permanent basis. 

By letter dated March 23, 2010, petitioner was informed that her appeal was denied by respondent at its meeting on March 22, 2010.  The letter stated that Jodie would be excluded on March 26, 2010.  Petitioner was also informed that respondent determined at its March 22, 2010 meeting that Ling was not a legal resident while she was in attendance at district schools and that petitioner is responsible for non-resident tuition for both of her daughters.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 5, 2010.

Petitioner contends that both Jodie and Ling reside with her in New Hyde Park and that she occasionally travels overseas for business or medical reasons.  Petitioner alleges that she has arranged for Jodie’s aunt and uncle who own the New Hyde Park residence to be responsible for Jodie during these absences.  Petitioner also contests respondent’s decision to charge non-resident tuition retroactively for Ling’s attendance during the 2005-2006 and 2006-2007 school years prior to her graduation from Great Neck South High School in June 2007.

Respondent contends that petitioner’s absence from the district is “continuous” and demonstrates that she does not reside or intend to reside in the district.  Respondent asserts that petitioner resides with her husband in Hong Kong and has not surrendered full care, custody and control of Jodie to anyone residing in the district.  Respondent contends that petitioner is attempting to repeat the arrangement used during the 2005-2006 and 2006-2007 school years when Ling lived with her uncle Kwok but her parents allegedly resided in Hong Kong.  Respondent also objects to petitioner’s reply and memorandum of law.

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.

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).

In support of her petition that Jodie resides with her in respondent’s district, petitioner produced banking, telephone and social security statements addressed to her at the New Hyde Park residence, as well as a college tuition statement for Ling.  Petitioner also submitted a durable general power of attorney dated March 12, 2010 appointing Jodie’s aunt, Suet P. Chung, the wife of Kwok, who resides at and co-owns the New Hyde Park property, to be responsible for Jodie during petitioner’s travel to Hong Kong.  The petition, the August 31, 2009 affidavit by Kwok, the September 4, 2009 affidavit by petitioner’s husband and petitioner’s March 10, 2010 letter unequivocally state petitioner’s intent to reside in the district.

Respondent submits an August 22, 2005 data form approving Ling’s registration for the 2005-2006 school year based upon a parent affidavit by her father and a custodial affidavit by her uncle Kwok, indicating that she would reside with him in New Hyde Park.  The data form indicates that her father resided in Hong Kong and her uncle and guardian resided in New Hyde Park and that Cantonese was the language spoken at home. Respondent relies upon the information on the 2005 data form, regarding Ling as the basis for its 2010 determination that Jodie is not a current resident.  However, respondent approved those same documents to prove Ling’s residency in 2005 and does not adequately explain how a 2005 affidavit from the father relating to a custody arrangement for a sibling establishes that Jodie does not reside with her mother within the district in 2010.  Respondent’s reliance on the 2005 unchallenged information, instead of the 2009 affidavits and 2010 documents and explanations provided by petitioner in Jodie’s case, is insufficient to overcome the presumption that Jodie currently resides with her mother in New Hyde Park. 

In addition, respondent discounted petitioner’s statements and evidence of residency based on the opinion of the registrar’s administrative assistant, Susan Garfinkel, that on September 4, 2009, “petitioner demonstrated by her words and demeanor that she did not intend to remain in the United States”.   In her affidavit, Garfinkle expressed “doubt” regarding petitioner’s veracity in indicating her plan to stay in the district.  However, the record does not reflect that Garfinkle’s conclusion is based upon statements by petitioner to Garfinkle.  Rather, the record shows that petitioner speaks Cantonese and no translator was present on September 4, 2009 or at the February 22, 2010 meeting with the registrar.  Nor does the record support respondent’s determination that petitioner’s “demeanor” proves her lack of veracity. 

Petitioner has submitted evidence that she currently has custody of Jodie and resides in the district, as well as an explanation of petitioner’s temporary absence from the district.  Respondent offers no evidence to rebut petitioner’s evidence other than conjecture and an inference from a sibling’s custody arrangement from 2005.  Accordingly, I am constrained to find on the record before me, that respondent’s determination that Jodie is not a district resident is based on insufficient evidence and is therefore arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Wing Yi (Jodie) Kwok to attend school in the Great Neck Union Free School District without the payment of tuition.

END OF FILE.