Decision No. 16,809
Appeal of DARREN GANNON, on behalf of his son BRANDON GANNON, from action of the Board of Education of the Eastchester Union Free School District regarding residency.
Decision No. 16,809
(August 5, 2015)
Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel
ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Eastchester Union Free School District (“respondent”) that his son, Brandon, is not a district resident. The appeal must be sustained.
In September 2014, petitioner enrolled Brandon in respondent’s Waverly Elementary School listing an address in Eastchester within the respondent’s school district where petitioner lives with his parents (“in-district address”). At the time, petitioner advised respondent that he and Brandon’s mother shared joint physical custody, and that Brandon’s time was split equally between them. Brandon’s mother does not live within the school district. Based on that information, Brandon was admitted to the district.
According to respondent’s residency officer, in October 2014, petitioner told a district employee that he and Brandon were living with petitioner’s new wife in New Rochelle (“out-of-district address”). Additionally, the residency officer states that, on numerous occasions Brandon arrived late for school or was not picked up from school on time. He further states that, when questioned, petitioner “and/or” his wife stated it was difficult to be on time because they were traveling from the out-of-district address. Thereafter, respondent commenced an investigation into petitioner’s residence.
Surveillance was conducted at both the in-district and out-of-district addresses on seven occasions. On two occasions, Brandon was dropped off at the in-district address in a car registered to his mother, where he then boarded a school bus. On four occasions, he was seen leaving the out-of-district address in the morning with petitioner’s wife, who dropped him off at the in-district address where he boarded a school bus. On one occasion, he was seen leaving the out-of-district address with petitioner and was dropped off at Waverly Elementary School.
By letter dated February 24, 2015, respondent’s residency officer notified petitioner and Brandon’s mother of his determination that petitioner did not reside within respondent’s school district and, therefore, Brandon would be excluded from school, effective March 6, 2015. This appeal ensued. Petitioner’s request for interim relief was denied on March 12, 2015.
Petitioner contends that he and Brandon reside with his parents at the in-district address and, therefore, Brandon is entitled to attend school in respondent’s district. In support of his contention, petitioner submits various documents listing the in-district address, including his driver’s license, a copy of his 2014 “W2 Wage and Tax Statement” from three separate employers, the first page of his 2013 federal tax return, and a March 15, 2015 bill for heating oil.
Respondent maintains that petitioner has failed to meet his burden of proving that Brandon is a district resident and requests that the appeal be dismissed.
First, I must address a procedural matter. After respondent submitted an affidavit in opposition to petitioner’s request for interim relief, petitioner submitted a verified statement in response, along with the first page of his 2014 federal tax return and an affidavit from Brandon’s grandmother. Although served on respondent before respondent served its answer and not labeled a reply, it appears that petitioner may have meant this submission to serve as a reply (see Appeal of M.S., 47 Ed ept Rep 396, Decision No. 15,733). Respondent does not object and, moreover, had the opportunity to address petitioner’s response. I note, however, that a reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the petitioner’s verified statement, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondent’s affidavit in opposition to petitioner’s request for interim relief. Specifically, with respect to the attached exhibits, I have not considered the affidavit of Brandon’s grandmother, which was available at the time petitioner initiated this appeal, but have considered the 2014 federal tax form, which was not so available.
Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:
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).
In support of his residency claim, petitioner submits his driver’s license, most recent tax documentation, and a heating oil bill, listing the in-district address. Petitioner’s verified responsive statement states that he did not tell district staff that he moved in with his wife, but only that he got married. Petitioner also states that he has never denied that his wife lives at the out-of-district address with her parents but that they have no plans to move in together at this time because “[n]either one has the funding to move.” Petitioner denies driving Brandon to school from the out-of-district address, as reported by respondent, and explains that he is at work before Brandon wakes up for school.
Respondent’s investigator conducted surveillance on seven occasions between December 3 and December 17, 2014. On two occasions, the investigator observed a car registered to Brandon’s mother drop Brandon off at the in-district address. Brandon was observed leaving the out-of-district address with petitioner’s wife on four occasions and with petitioner on only one occasion.
I do not find respondent’s limited surveillance to be persuasive evidence that petitioner and Brandon do not reside at the in-district address. The two surveillances where a car registered to Brandon’s mother was observed bringing him to the in-district address are consistent with the custody order setting forth Brandon’s mother’s parenting time. Nor are the four observances of Brandon’s step-mother driving him to the in-district address persuasive. As noted, petitioner explains that he and his wife do not yet live in the same house. Petitioner admits that he and Brandon spend time at the out-of-district address visiting their family. He also states that he works in the construction industry and that the hours and location vary. Petitioner explains that he works long hours at his jobs, one of which is with his father-in-law who lives at the out-of-district address. His multiple jobs are corroborated by the copies of the W-2 forms he submitted. Petitioner further explains that, depending on the circumstances, Brandon either stays with his grandparents at petitioner’s home at the in-district address or with his step-grandparents at the out-of-district address. Therefore, it is not unexpected that at times, Brandon would be driving from the out-of-district address to the in-district address to get his school bus. Significantly, on only one occasion was Brandon seen leaving the out-of-district address with petitioner and I note that they were in petitioner’s car, which is registered to the in-district address. Moreover, in addition to petitioner providing explanations for respondent’s very limited surveillance, the surveillance is contradicted by the documentation submitted by petitioner.
In sum, on the record before me, I find that petitioner has met his burden of proof and that respondent’s determination that Brandon does not reside in the district is not supported by the record and must be set aside.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent Board of Education of the Eastchester Union Free School District admit Brandon to the schools of the district without the payment of tuition.
END OF FILE
 Petitioner’s claim in this appeal rests entirely on his assertion that Brandon resides with him. There is no allegation that Brandon’s mother and petitioner do not share joint custody of Brandon. Therefore, her residency is not at issue in this appeal.
 Respondent’s counsel and residency officer state that eight surveillances were conducted, but the investigator’s affidavit reporting his company’s surveillance describes only seven dates of surveillance.