Decision No. 16,943
Appeal of JACLYN ANN MANFREDO, on behalf of her son JACINTO FLORES, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.
Decision No. 16,943
(August 9, 2016)
Ingerman Smith, LLP, attorneys for respondents, Edward H. McCarthy, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her son, Jacinto Flores (“student”), is not a resident entitled to attend its schools tuition-free. The appeal must be dismissed.
The student was originally registered in the district in 2012. In February 2016, respondent’s school principal noticed that the student often arrived late to school and told the principal that he now lived outside the district. Further, although the student had been assigned bus transportation for the 2015-2016 school year at the in-district residence listed on the student’s registration form, he often did not take the bus and was privately transported to school. The principal asked the director of student services (“director”) to initiate a residency investigation, which included surveillance conduced at petitioner’s alleged in-district residence during the mornings of February 22, 23, 24, 29, 2016, and March 1, 2016. During the surveillance, the director did not observe petitioner or the student at the in-district address. As part of the investigation, the director also obtained records from the Department of Motor Vehicles which indicated that the two automobiles in which the student had been observed being transported to and from school were not registered to petitioner and that one of those vehicles was registered to an individual at an out-of-district address.
By letter dated February 26, 2016, the director informed petitioner that the student was not entitled to attend respondent’s schools based on the fact that neither petitioner nor the student were residents of the district. The letter stated that the student would be excluded from respondent’s schools as of March 4, 2016, and informed petitioner of her right to present evidence in opposition to the decision.
On March 2, 2016, the director conducted a residency hearing at which petitioner presented documentation listing the in-district address including correspondence from the county department of social services and a landlord affidavit. Petitioner stated that the student had not utilized the district’s bus transportation at the in-district residence since October 2015. By letter dated March 3, 2016, the district’s superintendent informed petitioner that, after consideration of the documentation presented by petitioner at the residency hearing, he made the final determination upholding the district’s decision that the student was not a resident of the district and would be excluded after March 4, 2016. This appeal ensued. Petitioner’s request for interim relief was granted on May 13, 2016.
Petitioner asserts that her son resides within the district with her and his grandparents. She claims that the student has lived there for five years and intends to reside there “for [the] remainder of his school life.” Petitioner states that the student has not been attending school or receiving educational services since March 4, 2016.
Respondent contends that the petition should be dismissed as untimely and because it did not include an affidavit of service. Substantively, respondent argues that petitioner has not met her burden of proof to show that she and the student permanently resided in the district during the 2015-2016 school year, and that surveillance conducted by respondent refutes petitioner’s assertions regarding residency.
I must first address a procedural matter. Respondent asserts that the appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Here, the petition was not properly served upon respondent until May 3, 2016, more than 30 days after petitioner’s receipt of the superintendent’s March 3, 2016 letter which advised petitioner that her son could no longer attend school in the district beyond March 4, 2016. Because the appeal was commenced outside the required 30 day period, it is untimely.
Although delays in residency cases have been excused where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to re-apply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of Jean-Louis, 49 Ed Dept Rep 400, Decision No. 16,062; Appeal of Faucett, 38 id. 117, Decision No. 13,996), those factors are not present here. Moreover, I note that petitioner failed to submit a reply and, therefore, did not respond to respondent’s affirmative defenses. Accordingly, I find the appeal is untimely, warranting dismissal.
Even if the appeal were not dismissed as untimely, it would be dismissed on 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 this case, the district conducted surveillance at the in-district residence over five school mornings in February and one in March 2016. Neither petitioner nor the student were observed at that address during the surveillance. Moreover, neither of the two cars that were seen dropping the student off at school were present at or in the vicinity of the in-district address. Other than a copy of her learner permit (issued in 2012) and mail listing the in-district address, petitioner has not provided any evidence to rebut the district’s surveillance evidence or to establish that she and the student are physically present and intend to remain at the in-district residence. While some of the documents petitioner submits (such as a prescription for the student, an envelope addressed to “Jay Flores,” a letter to petitioner from an attorney, and a letter to petitioner from the Board of Elections) are dated 2016, the rest of the documents submitted are either undated or bear dates and postmarks from 2014 and 2015. Petitioner admits that the student has not been utilizing the bus from the in-district address since October 2015 and the record shows that the student has been arriving to school in one of two cars, neither of which are registered to petitioner and one of which is registered to an out-of-district address. Affidavits provided by respondent also indicate that the student reported he did not live at the in-district address. Based on the above, petitioner has not carried her burden to establish that the district’s residency determination was arbitrary, capricious, or unreasonable.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The affidavit from the landlord was not included in the appeal record by either party.
 Respondent also asks that I dismiss the appeal because no affidavit of service was included with the petition served upon the district. However, my Office of Counsel did receive an affidavit of service with the petition and it is clear that the district did receive the petition and timely answered it. Therefore, I decline to dismiss the appeal on that basis.