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Decision No. 17,061

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his mother, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 17,061

(March 13, 2017)

Charles Gleis, Esq., attorney for petitioner 

Ingerman Smith, L.L.P., attorneys for respondent, 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 the student is not a district resident.  The appeal must be dismissed.

The record indicates that in September 2007, the student’s parents made a request for his admission to the district.  According to petitioner, the student was admitted, has been attending school in respondent’s district since second grade, and is now a junior.  Petitioner states that she resides within respondent’s district with the student at a home owned by her brother, together with her brother, his wife, and the student’s cousins (the “in-district residence”).  The student’s father resides outside the district. 

At the end of the 2015-2016 school year, according to respondent, routine mail sent to petitioner’s previous address of record (the “Aspen Avenue” address) was returned to the district.  Respondent states that, despite several attempts to contact petitioner to ascertain her address and request proof of residency, including a telephone message left for petitioner on September 15, 2016, petitioner did not respond.  Subsequently, by letter dated September 19, 2016, respondent’s director of student services and central registration (“director”) notified petitioner that the student was not entitled to attend district schools because petitioner was not a resident of the district, and stated that September 23, 2016 would be the student’s last day.

The record indicates that on or about September 20, 2016, petitioner submitted a landlord affidavit, executed by her brother, to the district indicating that she and the student reside within the district for a lease term beginning July 1, 2016 and ending June 30, 2019.[1]  The director avers in an affidavit that, on the same day, he conducted a search of New York State Department of Motor Vehicle records and found that driver’s licenses had been issued to petitioner and the student using the student’s father’s address outside the district (the “out-of-district address”). 

A residency meeting was held on September 21, 2016, and was attended by petitioner, the director, and the district’s technology administrator.  The director avers that during the residency meeting, “[p]etitioner stated that she had recently moved in with her brother”; however, she “could not provide [him] with a copy of a lease agreement and confirmed that she did not pay rent to her brother.”  The director’s affidavit further states that petitioner also could not provide him with “any documentary evidence that she received any mail” at the in-district address but “admitted to receiving mail at the [student’s father’s] address.”  In addition, the director stated that petitioner “admitted that [the student] lives with his father ... ‘on weekends, and whenever he wants’” and that “she sometimes stayed at [the out-of-district address] as she was ‘working on her marriage’ with [the student’s] father.”

Subsequently, by letter dated September 23, 2016, respondent sent a second letter to petitioner upholding the district’s determination to exclude the student from school.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 31, 2016.  

Petitioner asserts that she and the student live in the district with her brother and his family who help with the student’s supervision, as petitioner “commute[s] to Manhattan every day” and does not “return home until after six pm each evening."  She states that the student “does spend weekends at his father’s house.”  Petitioner further states that the student “is an honor student who incidentally suffers from ADHD, as his past Bay Shore teachers and guidance counselor are aware.”  Petitioner asserts that “[s]tability is an important necessity for those who cope with this condition, and this abrupt uprooting ... [has] caused him untold distress” noting, in addition, that the student is “under the care of a physician and an emotional counselor.”    

In her reply, petitioner denies having received any correspondence from the district at the Aspen Avenue address, as alleged by respondent.  Petitioner also denies being contacted by telephone by the district, stating that her cell phone “number was never called” although the district “was always in possession of [her] cell phone number.”  Petitioner states that she provided the district with a new mailing address upon moving from the Aspen Avenue address and that, prior to moving to Aspen Avenue, she and the student had lived at her current in-district address.  Petitioner admits in her reply that the student’s car is registered at his father’s address, but states that she has “recently gotten a new car, and [her] new license and registration reflect her new address” in the district.  Petitioner also denies making the statement in the residency meeting, as respondent alleges, that she was “working on [her] marriage” because she and the student’s father “were never married.”  In fact, petitioner argues, “[the student’s] father is planning on moving to South Carolina after the new year to be close to another son from a previous relationship” so that the house that respondent “seeks to prove to be [the student’s] residence ... will not even be lived in by [the student’s] father for the remainder of the school year” (emphasis deleted).  Petitioner does not dispute respondent’s quoting her as saying that the student stays with his father “on weekends, and whenever he wants” but states that she and the student’s father “pride [themselves] on the fact that [they] have each fostered and encouraged [the student’s] relationship with the other parent.” 

As part of her reply, petitioner submits a copy of her current New York State vehicle registration showing her in-district address; a notification from the Board of Elections that petitioner’s request for a change of voter enrollment has been processed showing both her in-district address and current mailing address (a post office box); a copy of her driver’s license showing her mailing address; a copy of what appears to be a Department of Motor vehicles computer screen shot showing both petitioner’s in-district address and her mailing address; as well as an additional copy of the Landlord Affidavit.  In supplying these documents, petitioner references respondent’s affirmation in opposition to petitioner’s request for a stay in which respondent argued that petitioner “failed to meet her own burden of proof” by not producing “a driver license, a lease, voter registration records, and/or any utility bills expressly bearing the purported in-[d]istrict address.” Petitioner states that respondent “nicely lays out the criteria [she] needed to prove,” of which she claims to have been “unaware” at the time of the residency meeting.  In reply to respondent’s emphasis on petitioner’s statement that she pays no rent to her brother, petitioner states that “[t]hat is not the kind of family we are.”  Further, in reply to respondent’s statement that petitioner “fail[ed] to produce any documentary evidence supporting her residency,” instead only submitting a landlord affidavit “generated” almost simultaneously at the time of the student’s exclusion, petitioner poses the question of why it would have been prepared prior to the time of the district’s exclusion of the student. 

Petitioner requests a determination that the student is a resident of the district and is entitled to attend its schools without the payment of tuition.

Respondent contends that the petition fails to state a claim upon which relief may be granted and that petitioner and the student resided outside the district prior to and during the 2016-2017 school year.  Respondent also argues that the district’s determination to exclude the student was neither arbitrary nor capricious and that any review of the district’s determination “should be based upon the information the [d]istrict possessed at the time the administrative decision was made,” citing Appeal of Lawrence, 47 Ed Dept Rep 11, Decision No. 15,606.  

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).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

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).

At the time of respondent’s September 23, 2016 letter to petitioner excluding the student from school, respondent’s evidence consisted of driver’s license information for both petitioner and the student reflecting the student’s father’s address.[2]  In addition, based on the residency meeting held on September 21, 2016, respondent had statements it contends petitioner made (and which were  subsequently averred to by the director), not only that the student lives with his father “on weekends, and whenever he wants” but also that petitioner “sometimes stayed [there] as she was ‘working on her marriage.’”  Respondent also cited evidence, at that time, that although petitioner said she had recently moved in with her brother, she could not provide a lease agreement and confirmed that she paid no rent to her brother.  Further, respondent states that “[s]ignificantly, [p]etitioner failed to proffer common proofs of residency such as a driver license ... voter registration records, and/or any utility bills expressly bearing the purported in-[d]istrict address” and “could not provide ... any documentary evidence that she received any mail at the [in-district] address” but “admitted to receiving mail at the [student’s father’s] address.” 

At the time of the student’s exclusion, petitioner’s evidence consisted of a landlord affidavit, which respondent argues was “generated almost simultaneously at the time of the [d]istrict’s exclusion determination.”  Based on this evidence in the record at the time of respondent’s determination, I cannot conclude that respondent’s determination to exclude the student at that time was arbitrary and capricious.

As noted above, petitioner’s reply includes her response to new material or affirmative defenses set forth in respondent’s answer which attempts to rebut or otherwise explain respondent’s evidence, including documentary evidence that was not submitted with the petition or to respondent prior to its residency determination.  Respondent has not requested permission to submit additional information in response to petitioner’s reply (8 NYCRR §276.5[a]).  Regarding respondent’s argument that I should base my review of the district’s determination only upon the information that the district possessed at the time that respondent’s decision to exclude the student was made, I note that I may consider evidence properly submitted, as part of a reply, for example (see e.g., Appeal of Diaz, 54 Ed Dept Rep, Decision No. 16,734).

In her reply, petitioner submits documentation listing her in-district address on three documents - her current New York State vehicle registration, Department of Motor Vehicles information relating to her driver’s license, and notification from the Board of Elections regarding her voting enrollment.  However, 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.  The only new documentary evidence attached to the reply that is arguably in response to new material in the answer is a copy of petitioner’s current driver’s license.  Respondent did not allege in its answer that petitioner’s vehicle is registered at another address or that she is registered to vote at another address, and I have not considered petitioner’s new documentation in this regard. 

Taking into account those portions of the reply that are responsive to new material in or with the answer, including her denial of the allegations made in the affidavit of respondent’s director and her explanation of why she does not pay rent, I find that on this record petitioner has failed to meet her burden of proving that she and her son are physically present at the in-district residence.  Petitioner has demonstrated that she has changed the address on her driver’s license, but her current driver’s license uses a post office box as a mailing address, and therefore is not probative of whether she actually resides at the in-district residence.  While respondent’s evidence that petitioner resides outside the district is minimal and could easily have been rebutted by, for example, affidavits from the student’s father or affidavits of third parties attesting to the physical presence of petitioner and her son at the in-district residence or photographic or other evidence showing their physical presence therein, petitioner has provided no probative evidence beyond the landlord affidavit and has not fully explained her continuing connections to the out-of-district residence.  The appeal must therefore be dismissed. 

Although the appeal must be dismissed for the reasons set forth above, petitioner has the right to reapply for her son’s admission to respondent’s schools at any time and to submit any documentary evidence for respondent’s consideration pursuant to 8 NYCRR §100.2(y), including the documentary evidence submitted with petitioner’s reply that had not been submitted to respondent prior to its residency determination that is the subject of this appeal.  I note that petitioner alleges in her reply that her son’s father was planning to move to South Carolina in 2017, and while that allegation could not properly be considered in this appeal, if such a move occurred it could constitute important new evidence that would have a bearing on whether petitioner and her son in fact reside at the out-of-district residence.  If petitioner does elect to reapply for admission, I would urge respondent to carefully investigate whether petitioner and her son actually reside within the district.

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




[1] Petitioner submits a copy of the Landlord Affidavit as an exhibit to her petition.


[2] This information indicated that petitioner’s license was issued on August 28, 2013 (with an expiration date of March 19, 2017) and the student’s license was issued on August 3, 2016 (with an expiration date of October 20, 2020).