Decision No. 16,963
Appeal of KEITH CONNELLY and NOREEN KEEGAN, on behalf of their children, from action of the Board of Education of the Blind Brook-Rye Union Free School District and the Board of Education of the Port Chester-Rye Union Free School District regarding residency.
Decision No. 16, 16,963
(August 29, 2016)
Rutkin & Wolf PLLC, attorneys for petitioners, Mitchell Rutkin, Esq., of counsel
Girvin & Ferlazzo, P.C., attorneys for respondent Board of Education of the Blind Brook-Rye Union Free School District, Ryan P. Mullahy, Esq., of counsel
Sisca Sisca & Associates LLP, attorneys for respondent Board of Education of the Port Chester-Rye Union Free School District, Peter F. Sisca, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Blind Brook-Rye Union Free School District (“respondent Blind Brook-Rye”) that petitioners’ residence is outside the boundaries of the school district and, consequently, their children (“the students”), are not entitled to attend respondent Blind Brook-Rye’s schools without the payment of tuition. The appeal must be dismissed.
At the beginning of the 2014-2015 school year, the students were enrolled in respondent Blind Brook-Rye’s district. In October 2014, petitioners exchanged emails with respondent Blind Brook-Rye’s Assistant Superintendent for Finance and Facilities/District Clerk Jonathan Ross (“Dr. Ross”) indicating that they were interested in purchasing a home on their same street and wished to confirm the school district in which it was located. Ross informed them that the new property was located within the Port Chester-Rye Union Free School District (“respondent Port Chester-Rye”). In January 2015, petitioners purchased the home (“current residence”).
Petitioners and respondent Blind Brook-Rye disagree as to whether petitioners were given “unclear and contradictory information”, as alleged by petitioners, regarding the school district in which their current residence is located. They do not dispute that the students were permitted to continue to attend the schools of respondent Blind Brook-Rye’s district, without school bus transportation, for the remainder of the 2014-2015 school year.
By letter dated May 8, 2015, respondent Blind Brook-Rye’s interim superintendent (“interim superintendent”) notified petitioners that, to continue to attend school in the district, petitioners were required to apply for non-resident student status and pay tuition, in accordance with the district’s non-resident student policy. The letter also noted that the district only reserves a limited number of seats for non-resident students and asked petitioners to notify the district whether they planned to apply for non-resident student status on the students’ behalf as soon as possible, but not later than May 22, 2015.
By letter dated May 14, 2015, petitioners, through their attorney, wrote to respondent Blind Brook-Rye and requested that it “redraw the school district lines” based upon alleged inconsistencies in various maps and in respondent Blind Brook-Rye’s alleged practice of admitting students from other homes on the street. The letter claimed that maps showing the school district lines are inconsistent. Further, the letter stated that, although one map indicated that certain houses on petitioners’ block are outside the boundary of the Blind Brook-Rye school district, children living in those houses were currently attending, or had previously attended, school in the district and some were given the option of designating either Blind Brook-Rye or Port Chester-Rye as their school district.
By letter dated June 22, 2015, respondent Blind Brook-Rye, through its attorney, replied to petitioners’ attorney and denied petitioners’ request to redraw the district boundaries. Specifically, the letter stated that the district does not have the authority to redraw district boundaries and that it is unwilling to entertain any proposal to change such boundaries. The letter further stated that petitioners had been informed, prior to purchasing their new home, that it was outside the Blind Brook-Rye school district, and that petitioners had acknowledged such in the October 2014 emails with Dr. Ross. By voicemail message on July 16, 2015, petitioners were informed that the students were no longer enrolled in the district. This appeal ensued. Petitioners’ request for interim relief was granted on August 28, 2015.
Petitioners’ appeal concerns the location of their property as between the Blind Brook-Rye school district and the Port Chester-Rye school district. Because a determination in the appeal could adversely affect the Port Chester-Rye school district, by letter dated August 31, 2015, petitioners were directed to join the Board of Education of the Port Chester-Rye Union Free School District as a respondent (“respondent Port Chester-Rye”) pursuant to §275.1 of the Commissioner’s regulations. Respondent Port Chester-Rye has submitted a late answer in the appeal which I have accepted for consideration.
Petitioners allege that respondent Blind Brook-Rye’s determination that their property is located outside of its district in the Port Chester–Rye school district is either “based on an incorrect map of district lines” or uses “a method other than district line maps to determine eligibility for the [s]chool [d]istrict, which method is arbitrary and discriminatory towards [p]etitioners.” Petitioners admit that a map provided by respondent Blind Brook-Rye’s attorney shows their current residence as being outside the boundaries of that district. However, they argue that students living in other “similarly situated houses on the same block”, also shown on the map as being outside the Blind Brook-Rye district boundaries and in the Port Chester-Rye school district, have attended schools in respondent Blind Brook-Rye’s district without the payment of tuition. Petitioners contend that it was, therefore, reasonable to believe that their children, living at their current residence, would be eligible to attend school within respondent Blind Brook-Rye’s district. As relief, petitioners request a determination that their children are residents of respondent Blind Brook-Rye’s district and are, therefore, eligible to attend its schools without the payment of tuition.
Respondent Blind Brook-Rye argues that the appeal must be dismissed as untimely. Respondent Blind Brook-Rye alleges that petitioners have acknowledged that their residence is outside its district boundaries, and contend that the appeal must be dismissed for failure to state a claim upon which relief can be granted. Finally, respondent asserts that, to the extent petitioners argue that it is estopped from denying their children enrollment in its district, a claim of estoppel may not be brought against it.
Respondent Port Chester-Rye contends that the students have never enrolled, nor attempted to enroll, in its district and that it has never refused to register or enroll them. It argues that the petition should be dismissed against the Port Chester-Rye Union Free School District because neither petitioners nor respondent Blind Brook-Rye make any demand for relief against that district. Finally, respondent Port Chester-Rye asserts that petitioners do not have standing to bring a proceeding against it.
I must first address several procedural issues. Respondent Blind Brook-Rye objects to petitioners’ verified reply, arguing that it contains new factual and legal assertions which were not included in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). 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 reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
To the extent that respondent Port Chester-Rye asserts that petitioners do not have standing to maintain this appeal against it, such assertion is misdirected in this instance. Petitioners joined respondent Port Chester-Rye as a respondent in this appeal at my direction, as it is a necessary party, in that a determination that petitioner’s property is not located in respondent Port Chester-Rye’s district would adversely affect the district. Thus, having joined respondent Port Chester-Rye as a necessary party, the appeal will not be dismissed against it on the grounds that petitioners lack standing.
However, 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).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). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).
Respondent Blind Brook-Rye notified petitioners of its determination that their home was outside its district and their children were non-residents, by letter dated May 8, 2015, but it was not served with the petition until July 31, 2015, outside the required 30-day period. Petitioners assert that they did not believe the decision was final because they received “contradictory information” and believed that their children would be able to attend school in Blind Brook-Rye up until July 16, 2015, when they received a voice message stating their children were dis-enrolled. To the extent that petitioners appeal respondent Blind Brook-Rye’s decision that their home is outside its district boundaries, I find that the May 8, 2015 letter clearly and unequivocally notified petitioners of that decision. Service of the petition on July 31, 2015 – more than two months later – was untimely, warranting dismissal of the appeal from that determination.
Upon receipt of the May 8, 2015 letter, petitioners responded by letter dated May 14, 2015, from their attorney, requesting that the school district boundary lines be redrawn. Respondent Blind-Brook-Rye denied that request by letter dated June 22, 2015. It is from that decision whereby petitioners commenced this appeal. However, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt was June 27, 2015. Calculating the time to appeal from June 27, 2015, petitioners were required to commence such appeal on or before July 27, 2015. As noted, the petition was not served until July 31, 2015, outside the required 30-day period.
Petitioners disingenuously argue that “it is unclear when, or even if” they received a determination. They argue that the letter dated June 22, 2015, was sent only to their attorney, and not directly to them. They also argue that it was not “signed or consented to by the [s]uperintendent or a member of the [b]oard of [e]ducation.” They also contend that, after June 22, 2015, “staff” of respondent Blind Brook-Rye continued to communicate with petitioners regarding the students’ “participation” in its schools and that, therefore, it was reasonable for petitioners to assume that no final determination had been made.
I find these arguments without merit. The parties are represented by counsel and petitioners admit that their attorney received the June 22, 2015 letter. The same attorney represents petitioners in this appeal. Therefore, I find that petitioners received notice of the June 22, 2015 letter upon its receipt by their attorney (see e.g., People v. Smith, 54 NY2d 259). Petitioners’ apparent contention that the June 22, 2015 letter did not constitute a decision of respondent Blind Brook-Rye because it came from its counsel is unpersuasive. The letter was from the district’s representative and clearly states that it was confirming the district’s position in the matter.
Therefore, whether calculated from the May 8, 2015 letter or the June 22, 2015 letter, the appeal is untimely. Petitioners offer no further explanation for the delay and the appeal, therefore, must be dismissed.
Even if the appeal was not dismissed on procedural grounds, 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).
In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
On this record, petitioners have not established that their residence is situated within the boundaries of the Blind Brook-Rye school district. As stated above, petitioners admit that a map provided by respondent Blind Brook-Rye shows their current residence as being outside the district boundaries. Petitioners aver only that respondent Blind Brook-Rye’s determination may have been made based on an incorrect map; however, petitioners do not submit any other map(s) as evidence. The crux of their argument appears to be that students living in “similarly situated houses on the same block”, shown on the map as also being outside the district boundaries, have attended schools in respondent Blind Brook-Rye’s district without the payment of tuition.
Petitioners include a chart of seven addresses on the same block as their current residence, three on the same side of the street, and four on the opposite side of the street. Petitioners set forth what they claim to be the “school status” for five out of the seven properties. Petitioners allege that children living in four of the properties attended respondent Blind Brook-Rye’s district, including one which had a child scheduled to attend respondent Blind Brook-Rye’s district for the 2015-2016 school year. They further allege that the owners of the remaining property received a “school district designation form” from the Blind Brook-Rye school district and designated the Port Chester-Rye school district as their children’s school district. In its answer, respondent Blind Brook-Rye denies petitioners’ allegations. It avers that two of the properties that petitioners describe are located entirely in respondent Port Chester-Rye’s district, and that there is no record of any student residing at either of those addresses as having attended school in the Blind Brook-Rye school district. Respondent Blind Brook-Rye further avers that the other five properties relied upon by petitioners are “boundary line propert[ies]” pursuant to Education Law §3203 and appear on its district’s tax rolls. Petitioners have not submitted any evidence, such as affidavits from those property owners, to refute respondent Blind Brook-Rye’s assertions and establish their claims. Respondent Port Chester-Rye denies knowledge or information sufficient to form a belief about petitioners’ allegations.
On this record, I cannot conclude that petitioners have met their burden and established that their residence is within the boundaries of the Blind Brook-Rye school district. The record evidence indicates that it is outside the district in the Port Chester-Rye school district. While the location of the boundary with respect to neighboring properties has not clearly been described herein, such does not establish that petitioners’ property is within the Blind Brook-Rye school district. For example, the aforementioned properties which respondent Blind Brook-Rye contends are “boundary line properties” appear on the map submitted by petitioner to be wholly within respondent Port Chester-Rye School district. In its answer, respondent Blind Brook-Rye addresses this matter by stating that the assistant chief information officer of the Westchester County Geographic Information System stated that such map is not dispositive of whether those properties are boundary line properties. Respondent Blind Brook-Rye appears to rely on the tax rolls to determine the districts in which those properties are deemed to be located. To the extent that no clear description of the boundary vis-a-vis those properties exists – and I am unable to conclude so on this record – respondent Blind Brook-Rye may look to the tax rolls and other historic evidence to determine the school district location of those properties (see Appeals of Spectrum Communities, LLC, et al., and Edelstein, 46 Ed Dept Rep 160, Decision No. 15,474; aff’d sub nom Andreau, et al. v Mills, et al., Supreme Court, Albany County, April 30, 2008; appeal dismissed, Appellate Division, Third Department, January 18, 2010; n.o.r.). In any event, at most, the record raises questions as to the school district boundary regarding those boundary properties. Any ambiguity regarding those properties does not establish that petitioners’ property is within respondent Blind Brook-Rye’s school district. Other than petitioners’ conclusory assertions detailed above, there is no evidence on the record to support their claim. Therefore, on this record, I cannot conclude that petitioners have met their burden of proof.
Although petitioners have not established that their property is located within respondent Blind Brook-Rye’s school district and there is insufficient information in this record to ascertain the status of the properties described as “boundary properties,” I note for the benefit of the parties that, to the extent any ambiguity exists, pursuant to Education Law §2215(1), the district superintendent of schools shall ascertain whether the school district boundaries within his or her supervisory district are “definitely and plainly described” in the office of the proper town clerk. To the extent a boundary location is uncertain, the appropriate district superintendent of schools may determine where the boundary properly lies. If there is no order presently filed in the office of the appropriate town clerk, the district superintendent will provide such order in accordance with the provisions of Education Law §2215(1) (see Matter of Horowitz, 9 Ed Dept Rep 82, Decision No. 8,071).
Finally, to the extent that petitioners claim that respondent Blind Brook-Rye is estopped from denying their children admission to its district as residents, based upon its alleged prior admission of the students on petitioners’ street, petitioners’ claim must fail. As discussed above, petitioners have not established as fact that such admissions occurred. In any event, such action does not bind or estop the district from making a different determination in this case (see e.g., Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779). It is well settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 According to the record, although respondent Port Chester-Rye was served with a copy of the notice of petition and petition on September 11, 2015, as directed, it did not receive copies of respondent Blind Brook-Rye’s answer, as was also directed.
 Education Law §3203 provides that, where property is intersected by a school district boundary line, the property owners may designate which school district their children will attend.