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Decision No. 16,606

Appeal of SARUEL CHARLES , on behalf of his children CHRISSTELLE and CLIFFORD, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,606

(April 11, 2014)

Bon d , Schoeneck & King, PLLC , attorneys for respondent, E. Katherine Hajjar, Esq., of counsel

KING, JR., Commissioner. -- Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that his children, Chrisstelle and Clifford , are not district residents . The appeal must be dismissed.

Petitioner contends that he, his children and their mother currently reside in an apartment within the district . According to respondent, in October 2013, petitioner indicated to respondent that he and his children were living temporarily with his cousin within the school district. On October 28, 2013, a n attendance teacher conducted a home visit to the address and was informed by petitioner’s cousin that petitioner and his chi ldren did not live there. By letter dated November 1, 2013, respondent’s Director of Pupil Services (“director”) notified petitioner that the district was in receipt of information indicating that petitioner and his children did not live in the district a nd invited petitioner to submit documentation demonstrating his residency within the district. Petitioner submitted his driver’s license listing his cousin’s address and a Con Edison bill addressed to his cousin. The director avers that, thereafter, peti tioner informed a district receptionist that he resides in Yonkers and that petitioner’s wife informed an attendance teacher that petitioner lives in Yonkers.

By letter dated December 13, 2013, the director notified petitioner that respondent had determi ned that Chrisstelle and Clifford were not residents of the school district and , therefore, were not eligible to attend the public schools of the district. On January 2, 2014, petitioner submitted a n undated rental agreement to respondent’s Pupil Personne l Office. The rental agreement lists “Mr . & Mrs. Charles & Shei l la & two children” as 2 tenants and states that the tenants “can” move in on J anuary 1, 2013. The director avers that she has no knowledge of “Sheila Charles” and that t he rental agreement is insufficient to establish petitioner’s residency in the district. This appeal ensued. Petitioner’s request for interim relief was denied on February 24, 2014 .

Petitioner contends that he, his children and their mother live in an apartment within the sch o ol district. He asks that Chrisstelle and Clifford be permitted to attend respondent’s schools without the payment of tuition.

Respondent contends that the appeal should be dismissed as untimely and for improper service. Respondent also alleges that pe titioner and his wife have admitted to living at up to four different addresses and have produced no compelling evidence that they live within the district .

The appeal must be dismissed on procedural grounds. Section 275.8(a) of the Commissioner’s regul ations 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 has not complied with the regulations of the Commissioner . P etition er attempted to file the petition w ith my Office of Counsel on January 21, 2014. However, because t here was no indication that the petition was served on respondent, the filing was returned to petitioner and no appeal was commenced. On February 10, 2014, the petition was filed with my Office of Counsel . Petitioner also submitted an affidavit of servi ce indicating that the petition was served on the “NYS Education Dept” on January 8, 2014. Respondent submitted an affidavit from the district clerk (“clerk”) in opposition to the application for a stay. The clerk avers that she is authorized to accept s ervice on behalf of the district, but t hat the p etition was never served on respondent. Instead , the clerk avers that respondent was served only with a “Form 2 Affidavit of Verification” and “Form 3 Affidavit of Personal Service .” Petitioner submits no r eply or evidence to the contrary. Accordingly, the appeal must be dismissed for lack of jurisdiction based on 3 defective service ( see Application of Kelty , 49 Ed Dept Rep 12, Decision No. 15,946).

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

In light of this disposition, I need not consider petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE