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Decision No. 16,944

Appeal of LEONEL O. BARRIENTOS, on behalf of his son JACOB, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

Decision No. 16,944

(August 11, 2016)

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that his son, Jacob, is not a district resident.  The appeal must be dismissed.

During the 2015-2016 school year, petitioner’s son attended school in respondent’s district.  According to respondent, in March 2016, its Director of Student Services and Central Registration (“director”) received information that the student’s residence in the district (“first Bay Shore address”) was vacant and listed for sale. Subsequently, the district commenced a residency investigation of petitioner and Jacob, which included surveillance, and confirmed that the first Bay Shore address was in fact vacant and for sale.  Petitioner reported that he and his son had moved to a different Bay Shore address (“second Bay Shore address”), which office representatives confirmed was located outside the district, within the Brentwood Union Free School District.  The director also obtained records from the New York State Department of Motor Vehicles, which indicated that a learner permit had been issued to Jacob and three vehicles were registered to petitioner at an address outside the district in Brentwood (“Brentwood address”).

By letter dated April 5, 2016, the director notified petitioner that Jacob was not a resident of the district and would be excluded from attendance within respondent’s district after April 12, 2016.  On April 18, 2016, petitioner contacted the director’s office and stated that he resided on Third Avenue within the district, but could not provide the house number in which he claimed to reside.  The same day, petitioner again contacted the director’s office and claimed to reside at a different Bay Shore address (“third Bay Shore address”).

On April 22, 2016, the director held a residency hearing with petitioner and Jacob’s mother.  During the hearing, petitioner admitted to vacating the first Bay Shore address on or about March 1, 2016 and claimed to be residing at the third Bay Shore address, which is owned by petitioner’s friend.  Jacob’s mother indicated that she owns the Brentwood address.

Next, the director conducted surveillance of the third Bay Shore address and the Brentwood address.  The director avers that on April 23 and 24, 2016, petitioner and the student were not observed at the third Bay Shore address, but that, on those days, he observed that petitioner’s vehicles were parked at the Brentwood address.

By letter dated April 25, 2016, the district formally excluded Jacob as a student in respondent’s district.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 25, 2016.

Petitioner maintains that he and his son reside at the third Bay Shore address within the district and intend to reside within the district.

Respondent asserts that the appeal must be dismissed as untimely, for lack of proper service, for lack of proper notice, and for failure to set forth a clear and concise statement of petitioner’s claim.  Respondent alleges that petitioner and his son do not reside within its district and that its determination was neither arbitrary nor capricious.

I must first address the procedural issues.  By letter dated May 10, 2016, my Office of Counsel returned petitioner’s petition for failure to contain the notice required by Commissioner’s regulations §275.11 and an affidavit of personal service in accordance with Commissioner’s regulations §§275.8 and 275.9.  The letter indicated that the enclosed petition was only a single page with paragraphs one through seven and 14 and appeared to be missing paragraphs eight through 13 and/or other pages. Further, the letter noted that, if petitioner wished to request interim relief, an additional notice was required under §276.1(b).  On May 23, 2016, my Office of Counsel received from petitioner a new petition,[1] together with an affidavit of verification, sworn to on May 20, 2016, and an affidavit 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 (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’s affidavit of service, sworn to on May 20, 2016, indicated that respondent’s district clerk was personally served on May 20, 2016.  According to an affidavit from respondent’s district clerk, on May 13, 2016, the district clerk was served with the same petition that was returned by my Office of Counsel on May 10, 2016.  However, the district clerk indicated that she was never served on May 20, 2016 as petitioner’s affidavit of service indicates, and that she never received any corrected pleadings, papers, and/or documents following the original service date of May 13, 2016.  Petitioner submits no reply or other evidence to refute respondent’s claim of improper service.  On this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed.

The appeal must also be dismissed because, as respondent notes, neither the original petition nor the “corrected” petition contain the notice required by §275.11 of the Commissioner’s regulations.  The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; Appeal of Pierre, 55 Ed Dept Rep, Decision No. 16,860; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  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 Pierre, 55 Ed Dept Rep, Decision No. 16,860; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  As noted, respondent asserts that neither the original petition nor the “corrected” petition contain the required notice.  Indeed, the petition received by my Office of Counsel on May 23, 2016 does not contain a notice of petition.  Moreover, even if I were to consider the original petition, which was returned by my Office of Counsel, the “notice” served by petitioner on May 13, 2016, and provided by respondent, contains only the caption of the appeal and does not contain any of the language required by §275.11(a) (see e.g. Appeal of Zayas, 53 Ed Dept Rep, Decision No. 16,546).  Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on his son’s behalf at any time, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that the “corrected” petition is also only a single page, with paragraphs one through seven only.