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Decision No. 16,499

 

 Appeal of ALEXANDRA JOHNSON, on behalf of her son ADEL ADAM - ESKANDER, from action of the Board of Education of the East Irondequoit Central School District regarding residency.

Decision No. 16,499

(July 8, 2013)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Christopher M. Militello, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the East Irondequoit Central School District (“respondent”) that her son, Adel Adam-Eskander, is not a district resident. The appeal must be dismissed.

Petitioner and her husband, Adel’s stepfather, reside within the district. On January 25, 2013, Adel’s stepfather informed the district’s deputy registrar(“registrar”) that Adel no longer resided at the in-district address, but instead was living outside the district with his father in Ontario, New York.

By letter dated January 28, 2013, the registrar notified petitioner that Adel was no longer a district resident and that he would be dropped from district attendance rolls effective February 8, 2013.

By letter dated February 4, 2013, petitioner, her husband and Adel informed respondent that Adel permanently resides at the in-district address and would visit his father in Ontario on weekends. By letter dated February 7,2013, respondent’s assistant school business administrator(“administrator”) informed petitioner that, based upon the additional information provided, Adel would not be excluded from the district’s schools.

According to respondent, on March 5, 2013, “concerns” arose about the residency of other students alleged by petitioner to be living at the in-district address. In response, the district arranged for surveillance of the in-district address for a 7-day period commencing on March 11,2013 and ending on March 19, 2013. During this period, Adel was never observed entering or departing the in­

district address despite the fact that he attended school on March 12, 15, 18 and 19. The Ontario address was never surveilled.

On March 15, 2013, Adel’s sister informed the district attendance clerk that Adel was not residing at the in-district address, but rather was residing with his father in Ontario.

Based on the surveillance report and Adel’s sister’s statement, the district notified petitioner by letter dated March 21, 2013 that Adel was not a district resident and would be excluded from the district’s schools effective March 28, 2013.

On April 3, 2013, a conference was held at which petitioner was asked to produce documentation substantiating Adel’s residence within the district. Petitioner provided a piece of mass-marketed mail. She also indicated that Adel’s sister’s statement to the attendance clerk was untrue and that Adel was spending more time at his father’s home because his father was very ill.

Respondent’s administrator issued a final determination letter dated April 3, 2013 informing petitioner that Adel was not a district resident and would be excluded from its schools. This appeal ensued. Petitioner’s request for interim relief was granted on April 19, 2013.

Petitioner maintains that Adel resides with her within the district, and on occasion visits his father outside the district.

Respondent maintains that the appeal must be dismissed for improper service and because Adel resides with his father outside the district.

The appeal must be dismissed for improper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939;Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of service indicates that the notice of petition and petition were served on respondent by leaving them with Leeanne Reister, the assistant school business administrator. Respondent denies that Leeanne Reister is authorized to accept service. Petitioner did not submit a reply to contradict respondent’s assertion of improper service. When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Terry, 50 Ed Dept Rep, Decision No.16,117; Appeal of Villanueva, 49 id. 54, Decision No.15,956; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).

In light of this disposition, I need not consider the parties’ remaining contentions.

However, although I am constrained to dismiss the appeal for improper service, I note that, on this record, respondent’s surveillance evidence was not overwhelming and that petitioner has attempted to advance a plausible explanation as to why her son was not observed at the in-district address on the four occasions he was in school. Petitioner retains the right to reapply to the district for admission of her son at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (see Appeal of Williams, 51Ed Dept Rep, Decision No. 16,302; Appeal of Braxton-Strohman, 50 id., Decision No. 16,183).

THE APPEAL IS DISMISSED.

END OF FILE