Decision No. 16,629
Appeal of SINEATCA NORMAN, on behalf of her
daughter DANAE HARDY, from action of the
Board of Education of the City School
District of the City of New Rochelle regarding residency.
Decision No. 16,629
(July 8, 2014)
Bond, Schoeneck & King, PLLC, attorneys for respondent, Jeffrey A. Kehl, 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 her daughter, Danae, is not a district resident. The appeal must be dismissed.
Respondent states that petitioner initially presented her daughter for enrollment in its schools on August 19, 2013. According to respondent, at that time, petitioner claimed that she and Danae had just moved into the district and were living with petitioner’s mother. Because this presented what respondent refers to as a “host family” circumstance, respondent asked petitioner to submit a “Statement of Visiting Family to Establish Residence of Students” form. On the form, petitioner listed her “prior” address as one outside the district and her mother’s in-district address as her new “permanent” address as of August 3, 2013. Respondent contends that it conducted a home visit to petitioner’s mother’s address on August 30, 2013 and was unable to verify petitioner’s residency. According to respondent, by letter dated September 13, 2013, respondent informed petitioner that she and Danae had been determined not to be district residents and that Danae was therefore ineligible to attend respondent’s schools.
The record indicates that respondent’s Director of Pupil Services (“director”) met with petitioner on September 17, 2013 to discuss her residency and explain that respondent would need to conduct another home visit to verify her residency. Respondent states that a second home visit was conducted on September 18, 2013, but that petitioner and her daughter were not present.
On September 19, 2013, petitioner submitted an “Application to Establish Residency” (“application”) which listed a different address within the district as petitioner’s residence (“second address”). Petitioner states that, in support of her September 19, 2013 application, she provided respondent with several documents including her lease for the second address, a utility bill, bank statements, and a telephone landline/cable bill. Petitioner also states that after her application was denied, she met with the director who requested additional documentation that was not listed on the registration forms. Petitioner states that between September 19 and 23, 2013, she provided respondent with tax records, her son’s birth certificate, a recent pay stub, and a letter from her children’s health insurance provider. Respondent states that it investigated petitioner’s residency at the second address and concluded that petitioner and her daughter did not reside at this address either.
Petitioner alleges that her September 19, 2013 request was denied on September 20, 2013. Respondent denies this allegation and neither party has submitted a copy of any letter or other record of respondent’s determination. This appeal ensued. Petitioner’s request for interim relief was denied on October 17, 2013.
Petitioner contends that she and Danae live in the district at the second address (noted on the application) with petitioner’s fiancé and their son. Petitioner requests review of her supporting documentation so that Danae may attend school in the district. Respondent contends that petitioner and Danae reside outside the district and that Danae is ineligible to attend school within the district.
I will first address a procedural issue. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified by the oath of at least one of the petitioners. The affidavit of verification submitted with the reply is signed by an unidentified individual, and not by petitioner in violation of §275.5. Accordingly, I have not considered petitioner’s improperly verified reply (see e.g., Appeal of Vendel, 50 Ed Dept Rep, Decision No. 16,134).
Turning to the merits, 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).
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).
As noted above, to support her application, petitioner submitted a lease for the second address within the district, signed by petitioner and her son’s father as tenants. However, 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). The October 1, 2012 commencement date of this lease at the second address is inconsistent with the sworn statement submitted by petitioner on August 19, 2013 to initially establish residency in the district at her mother’s address. Specifically, in the August residency application, petitioner stated that she and her daughter moved into her mother’s in-district address on or about August 3, 2013, resided outside the district “immediately prior” to moving into the district and that the reason for the move was because her “former landlord increased [her] rent and [she] could not pay the increased amount.” She also stated that she was moving in with her mother on a “permanent basis” and that her son “does not reside with [her] ... because he resides with his father” (the other named tenant with petitioner on the lease at the second address). The October 1, 2012 start date of the lease would have petitioner and her daughter living at the second address in the district prior to and at the time of petitioner’s initial attempt to establish residency in the district at her mother’s address. The lease is also inconsistent with the petition in this appeal (dated September 30, 2013) in which petitioner avers that Danae has resided in respondent’s district for 13 days.
Furthermore, other residency documentation submitted by petitioner in her appeal is inconsistent with her initial August 19, 2013 application for residency using her mother’s address and does not prove residency at the second address as claimed by petitioner in her September 19, 2013 application and in this appeal. For example, the bank statements submitted (for custodial accounts for petitioner’s daughter) listed the second address and were for time periods (May 17 - June 18, 2013 and August 17 - September 18, 2013) both before and after petitioner’s initial application for residency using her mother’s address. In addition, the utility bill submitted was dated September 6, 2013, prior to petitioner’s September 19, 2013 application using the second address, and was in the name of petitioner’s son’s father only, at the second address. The bill for telephone landline/cable listed petitioner’s name at the second address and was dated July 24, 2013, prior to both the August 19, 2013 application for residency using petitioner’s mother’s address and the September 19, 2013 application using the second address. In total, the evidence presented by petitioner is confusing, internally inconsistent, and insufficient to establish physical presence or intent to reside at either address in the district.
In contrast, respondent provided affidavits from the director as well as an attendance teacher. The attendance teacher avers that during the initial August 30, 2013 home visit at petitioner’s mother’s residence, she saw “no evidence that Danae ... (or her mother) lived in the apartment.” In addition, despite the director’s statement that she advised petitioner that another home visit would be necessary before her residency at her mother’s address could be verified, the attendance teacher avers that petitioner was not available at the residence for the September 18, 2013 home visit. The attendance teacher also explains that she observed the second address “on approximately ten different occasions between September 23rd and October 3rd, on various days of the week, including weekends, and at different times of day” and that at no time was petitioner or her daughter seen “entering the premises, leaving the premises, or on the premises.” The attendance teacher also states that she interviewed the landlords of both addresses. At petitioner’s mother’s address, she was informed that the landlord “had no knowledge of petitioner or Danae living at that address” and the landlord at the second address stated that petitioner did not reside there nor did she stay there on any regular basis, although she visited from time to time. Finally, the attendance teacher states that she contacted a middle school in petitioner’s prior school district and was informed that Danae was most recently registered as a student there on July 2, 2013 and has been regularly attending since the start of the 2013-2014 school year.
On the record before me, I find that petitioner’s evidence is insufficient to meet her burden of proving her claim of residency. Accordingly, I cannot conclude that respondent’s determination was arbitrary or capricious.
Although petitioner does not raise this issue and it does not affect the outcome of the appeal, I note that, while petitioner contends that respondent denied her September 19, 2013 request for admission on September 20, 2013, respondent denies this claim and neither party has submitted a copy of a written determination by the district. 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 Belasse, 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). In this case, the record contains no indication that the required written notice was sent to petitioner. Therefore, while I have reviewed petitioner’s documentation and find that she has not carried her burden of proof, I remind respondent of its obligation to fully comply with §100.2(y) of the Commissioner’s regulations.
While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 I note that the petitioner in a pending appeal (Appeal of Vincent, Appeal No. 19,926), claims that she and her daughter also reside at the instant petitioner’s mother’s in-district residence.
 Respondent defines this as “a situation in which a parent and child say that they are living in someone else’s residence.”
 Neither party has submitted a copy of the September 13, 2013 letter.