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Decision No. 16,292

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Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the Nanuet Union Free School District regarding residency.

Decision No. 16,292

(August 30, 2011)

Kuntz, Spagnuolo, Murphy & Gronbach, P.C., attorneys for respondent, Mario L. Spagnuolo, Esq., of counsel

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

In August 2010, petitioner registered her daughter for enrollment in the district’s middle school.  The record contains no information about what documentation petitioner presented to the district at that time, but petitioner apparently claimed to reside on Jerry’s Avenue in the district.  In December 2010, respondent commenced an investigation regarding petitioner’s residency, although the record is silent about what prompted that investigation.

The investigator avers that the home on Jerry’s Avenue that petitioner claimed to be her residence is a single-family home owned and occupied by another family, and that she never observed petitioner, her husband, or their daughter there during five surveillances between December 3, 2010 and January 14, 2011.  The investigation also revealed that the student’s father resided on Renfrew Road in Chestnut Ridge, outside the district; that there were three vehicles registered to the father and grandfather at that address that were never observed at Jerry’s Avenue; and that on one date in December, petitioner was observed picking up her daughter at Renfrew Road.

Petitioner states that on February 24, 2011, she received a letter from the district stating that it had reason to believe that her daughter was not a district resident and offering petitioner the opportunity to submit information regarding her residency by March 3, 2011.  Petitioner asserts that she submitted a copy of a lease for the period January 1, 2011 to January 1, 2013, receipts for three months’ rent for December 2010 through February 2011, and three other documents addressed to her at Jerry’s Avenue.  By letter dated March 3, 2011, the district’s assistant superintendent notified petitioner of his determination that her daughter was not a legal district resident and would be excluded from the district’s schools on March 10, 2011.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 22, 2011.

Petitioner contends that she and her daughter have resided on Jerry’s Avenue since 2004.  She asserts that the district failed to provide her with an opportunity to present her information in person.  She seeks a determination that her daughter is a district resident entitled to attend school in the district without the payment of tuition.  Respondent contends that petitioner and her daughter have never resided within the district and reside on Renfrew Road.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner asserts that she and her daughter have lived on Jerry’s Avenue for seven years and that her daughter previously attended a private parochial school because she was going through a difficult time due to petitioner’s separation from her husband.[1]  She states that her daughter frequently visits her father on Renfrew Road, where he also runs a business out of the home for which petitioner has worked for over 20 years.  She also asserts that, in spite of their marital situation, she spends much of her day at Renfrew Road attending to business, brings their daughter back there after school, and their daughter often spends the night with her father.  Petitioner asserts further that she has been ill since November 2010, which has necessitated that she and her daughter spend more time at Renfrew Road even though her residence is Jerry’s Avenue.

Petitioner attaches to the petition several exhibits purporting to demonstrate her residency within the district:  a residential lease and three rental receipts, and envelopes  from a bank, credit card company and municipal court, all of which appear to be the same documents submitted to respondent on March 3, 2011; medical and related financial records for November 2010 through January 2011; a driver’s license with the Jerry’s Avenue address issued March 30, 2005 that expired on December 31, 2010; and a temporary driver’s license listing Jerry’s Avenue that expired on June 6, 2011.

Respondent disputes the exhibits submitted by petitioner.  Most significantly, however, respondent asserts that petitioner’s residency claims are contradicted by sworn statements she made, under penalty of perjury, in a federal bankruptcy proceeding in April 2009.  On a voluntary petition filed in the United States Bankruptcy Court in the Southern District of New York, petitioner declared in April 2009 that she resided on Renfrew Road, that she and her husband owned the residence as tenants in the entirety, and that she was a joint debtor with her husband.  Additionally, respondent provides an unofficial copy of a Rockland County Warrant showing a mortgage recorded for petitioner and her husband in 1994 for the Renfrew Road property.

Petitioner’s sworn statements regarding her bankruptcy in 2009 belie her claims that she has been residing on Jerry’s Avenue for seven years.  They also contradict a 2004 notarized letter provided by respondent from the owner of Jerry’s Avenue, petitioner’s purported landlord.  The letter states that petitioner, her husband, her daughter and a fourth member of the family would be renting a two-bedroom, two-bathroom apartment in his house; however, as noted above, the investigator averred that Jerry’s Avenue was a single-family home occupied by others.

The 2009 bankruptcy proceeding and the fact the house is a single-family dwelling also cast doubt on the validity of the rental receipts and two-year lease commencing January 1, 2011 provided by petitioner.  Petitioner failed to explain how she could be leasing a single-family home occupied by others.  Moreover, while respondent’s surveillance evidence is not overwhelming, nonetheless, neither petitioner nor her daughter was ever observed at Jerry’s Avenue, and petitioner has not submitted any credible evidence of her physical presence there.  Accordingly, in this case, I do not find the lease or consecutively numbered rent receipts dispositive evidence of residency.

While petitioner’s health issues and claims of employment provide at least a partial explanation of her presence at Renfrew Road, I find that petitioner has failed to provide any evidence to support her employment or claimed marital separation. Notably, petitioner failed to submit a reply in this proceeding to respond to respondent’s documentation relating to the bankruptcy proceeding or any other of respondent’s evidence, including the investigator’s affidavit.  Furthermore, I agree with respondent that petitioner’s remaining exhibits have little probative value.  Specifically, envelopes, only one of which has a semi-legible postmark, addressed to petitioner at an in-district address, or, the issuance of a driver’s license with that address, without more, are insufficient to prove her physical presence and intent to reside at Jerry’s Avenue.

Thus, on the record before me, I find that petitioner has failed to meet her burden of proving that she resides in the district.  Therefore, I cannot conclude that respondent acted arbitrarily or capriciously in determining that petitioner’s daughter is not a district resident.  Accordingly, respondent's determination will not be set aside.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her daughter’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioner states that her daughter has been tested and is eligible for special education services.

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