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Decision No. 16,546

 

 Appeal of RUBY ZAYAS, on behalf of her son JONAS BAERGA, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,546

(September 4, 2013)

Richard C. Clifford, Esq., attorney for petitioner

Kehl, Katzive & Simon, LLP, attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her son, Jonas, is not a district resident. The appeal must be dismissed.

During the 2012-2013 school year, Jonas was a six ­year-old student attending respondent’s Daniel Webster Elementary School. Petitioner asserts that she resides in the district and that, due to her work schedule, Jonas occasionally stays with petitioner’s parents, who reside in an apartment in the Bronx (“Bronx address”).

According to respondent, in or about May 2013, a question arose as to Jonas’ residency when he allegedly told his teacher that he and his family were not living in New Rochelle. As a result, respondent’s attendance teacher contacted the real estate management company that manages the Bronx address, which, according to respondent, confirmed that petitioner and Jonas “in fact reside at [the Bronx address].”

By letter dated June 12, 2013, respondent’s director of pupil services (“director”) informed petitioner that Jonas would be excluded from school, effective June 21,2013, “based upon petitioner’s relocation to the Bronx, New York.” The director’s June 12, 2013 letter was mailed to the Bronx address. This appeal ensued.

Petitioner asserts in her petition that Jonas resides with her at her apartment within respondent’s school district. Petitioner requests a determination that Jonas is a resident of respondent’s school district and is entitled to attend school tuition-free. She also requests interim relief pursuant to 8 NYCRR §276.1, permitting Jonas to attend school in respondent’s district pending a decision on the merits of this appeal.

By letter dated July 18, 2013, respondent advised my Office of Counsel that it would not be opposing petitioner’s application for a stay, but that it would be opposing the appeal on two procedural grounds. Respondent served its answer on July 18, 2013, and its supporting affidavits on July 24, 2013. In its answer, respondent makes general denials regarding the merits of the appeal and asserts that the petition must be dismissed due to improper service and because it does not contain the notice required by Commissioner’s regulations §§275.11 and 276.1.

I must first address several procedural matters. Following receipt of the answer, my Office of Counsel granted petitioner’s request for an extension of time to serve her reply. Petitioner subsequently retained counsel to represent her in this appeal. Instead of submitting a reply, however, petitioner’s counsel served an amended petition and supporting papers on petitioner’s behalf, including an affidavit from petitioner’s process server. In response to the amended petition, respondent requested permission pursuant to 8 NYCRR §276.5 to submit an affidavit from its district clerk to respond solely to the affidavit of petitioner’s process server.

By letter to petitioner dated August 14, 2013, my Office of Counsel advised that the amended petition would not be accepted, and that pursuant to petitioner’s request for an extension, her reply was due on August 13, 2013. Thereafter, by letter dated August 27, 2013 to my Office of Counsel, petitioner’s attorney advised that the amended petition would be withdrawn, and requested pursuant to 8 NYCRR §276.5 that I accept additional documents, including a verified reply; an affidavit from petitioner’s process server in support of the reply; an affidavit from petitioner in support of the petition; and a memorandum of law.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

To the extent they respond to issues raised in the answer, I will accept petitioner’s reply and affidavit in support of the reply. The remaining papers submitted by petitioner include allegations, inter alia, that respondent failed to provide her with an opportunity to submit information concerning her son’s residency prior to the June 12, 2013 final residency determination. To the extent these materials attempt to raise new issues that were not included in the petition, I have not considered them.

I will also accept respondent’s affidavits in support of its answer, which were served on July 24, 2013. Section

275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13). According to petitioner’s affidavit of service, the petition was served on July 11, 2013. Respondent therefore had until July 31,2013 to serve its answer and supporting affidavits. Respondent served its answer on July 18, 2013, and served its supporting affidavits on July 24, 2013 – all within the20-day period from the time of service despite respondent’s failure to include them with its answer. I will therefore accept the supporting affidavits respondent served on July24, 2013.

I will further accept respondent’s submission of the additional affidavit of its district clerk in response to the affidavit of petitioner’s process server. I note that respondent should have submitted this affidavit with its answer; however, since I have accepted and considered petitioner’s reply and the affidavit of petitioner’s process server, I find that petitioner would not be prejudiced by my review of the responsive affidavit on the issue of service.

The appeal must be dismissed for lack of proper 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 (8NYCRR §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 does not deny that her initial attempt at service on June 19, 2013 was improper. Rather,

petitioner submits an affidavit from her process server, who explains that no one was present when she attempted to serve the superintendent at his office on July 11, 2013.As a result, she served the papers “in good faith” upon an employee at the superintendent’s offices who identified himself as authorized to accept service of papers on behalf of respondent. Respondent’s district clerk avers that such employee holds the title of “School Messenger” and is responsible for “moving intra-District mail between buildings and ... performing other mail-related jobs” and that he is not authorized to accept service. When there is no proof that the individual who received the petition is authorized to accept service on behalf of the school board, service on that individual is improper and the appeal must be dismissed (Appeal of McIntyre, et al., 49 Ed Dept Rep333, Decision No. 16,045; Appeal of Baker, 47 id. 280,Decision No. 15,696).

The appeal must also be dismissed because the notice of petition is defective and does not comply with §275.11(a) of the Commissioner’s regulations. The “notice” served by petitioner contains only the caption of the appeal and does not contain any of the language required by§275.11(a), which advises a potential respondent of the obligation to answer the petition in accordance with the Commissioner’s regulations and of the consequences of failing to answer. A notice of petition that does not contain the language required by §275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Gaynor, 51 Ed Dept Rep, Decision No. 16,293; Appeal of Hoggins Maldonaldo, 50 id., Decision No. 16,185; Appeal of Khalid, 40 id. 621, Decision No. 14,570). Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address petitioner’s request for interim relief or the parties’ remaining contentions.

However, although the appeal must be dismissed on procedural grounds, I am compelled to comment on respondent’s apparent failure to comply with §100.2(y) of the Commissioner’s regulations in making its residency determination in this case. Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the

district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y];Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468;Appeal of Jones and Be lasse, 46 id. 24, Decision No.15,430). The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse,46 Ed Dept Rep 24, Decision No. 15,430).

The record contains no evidence that respondent afforded petitioner the opportunity to submit information concerning her son’s residency prior to making its final residency determination. Indeed, the director’s June 12,2013 final residency determination letter appears to be the first and only written communication provided to petitioner regarding residency. Moreover, the director’s June 12,2013 letter failed to state an adequate basis for the determination of non-residency and contained only the general assertion that the determination was “based upon [petitioner’s] relocation to the Bronx, New York.” Petitioner must be afforded sufficient information regarding the basis for the decision to initiate a meaningful challenge to respondent’s residency determination (see Appeal of Ogden, 37 Ed Dept Rep 141,Decision No. 13,826).

Petitioner retains the right to reapply for admission to respondent’s schools on Jonas’ behalf at any time, and to submit any documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y), including that which was submitted by petitioner as part of this appeal. Respondent must consider all such evidence in accordance with 8 NYCRR §100.2(y), and I admonish respondent of its obligation to comply with all such requirements in the future (see Appeal of Daniels, 37 Ed Dept Rep 557, Decision No. 13,926).

THE APPEAL IS DISMISSED.

END OF FILE