Decision No. 17,199
Appeal of a STUDENT WITH A DISABILITY and his brother, by their mother, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.
Decision No. 17,199
(September 27, 2017)
The Law Offices of Stewart Lee Karlin, P.C., attorneys for petitioner, Stewart Lee Karlin, Esq., of counsel
Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her children (“the students”) are not district residents. The appeal must be sustained.
The record indicates that the students attend respondent’s Ward Elementary School. At the time of this appeal, the students attended third grade. In the spring of 2016, respondent questioned petitioner’s residence within the district, based upon statements made by the students indicating that they may no longer live in the district. As a result of such statements, respondent commenced a residency investigation which included surveillance of an address located outside of the district in Mount Vernon, New York (the “out-of-district address”). The record indicates that respondent first conducted surveillance of the out-of-district address on May 4, 2016 at 7:15 a.m. and observed petitioner and her children leaving the out-of-district residence. By letter dated May 11, 2016, respondent’s director of pupil personnel services (“director”) informed petitioner that the district suspected that she and her children did not reside within respondent’s district, and invited petitioner to provide additional information in support of her residency status by May 26, 2016. Following the determination letter of May 11, 2016, respondent conducted additional surveillance at the out-of-district residence on May 17, 18, 19, 20, 24 and 25, 2016 and observed the students exiting the home with petitioner around 7:20 a.m. No surveillance was conducted at the in-district address.
The record indicates that, in response to respondent’s request for information, by letter dated May 20, 2016, petitioner explained that her parents own two homes on the same street located within respondent’s district, and that she resides in one of the homes with her two children and pays rent. Petitioner asserted that she has lived in this residence with her children since 2008. Petitioner submitted documentary evidence in support of her residence within the district including a utility bill, a cell phone bill, bank statements, and her driving abstract. Upon submission of such documents, petitioner sought a meeting with the “head administrator” or confirmation from respondent that the explanation and documentary evidence provided were sufficient to confirm her residence within the district. Respondent did not respond to this letter.
By letter dated May 26, 2016, the director advised petitioner of her determination that petitioner was not a district resident, and that the students would be excluded from attending Ward Elementary School after the conclusion of the 2015-2016 school year. Although the letter indicated that the director based her determination on surveillance during which the students were observed exiting the out-of-district residence, there is no indication in the record that respondent provided petitioner with a description of such surveillance, or provided an opportunity for petitioner to address or explain the surveillance before the May 26, 2016 determination was made.
On June 6, 2016, petitioner met with the director to discuss her residency determination and to provide additional information in support of her residency within the district. At the meeting, petitioner was informed that the students would be excluded from the district’s schools at the conclusion of the 2015-2016 school year. This appeal ensued. Petitioner’s request for interim relief was granted on August 31, 2016.
Petitioner asserts that she and her children reside at the in-district address and, therefore, her children are entitled to attend respondent’s schools tuition-free. Petitioner submits, among other evidence, a copy of a lease agreement for the in-district address whereby petitioner agreed to lease the in-district address from her parents, who own the house. Petitioner further asserts that she purchased the out-of-district property in 2009 as an investment property, but that the property is currently in foreclosure and she intends to sell the property. Petitioner further explains that prior to June 12, 2016, she was out of work on disability leave and, subsequently, at home on strike due to a labor dispute with her employer. Petitioner explains that, during this time, she spent a significant amount of time at the out-of-district home working on repairs and remodeling. Petitioner further explains that there were times she stayed late at the out-of-district residence and, when she could not make alternate childcare arrangements, the students would stay overnight with her at the home. Petitioner further contends that respondent’s decision was unfair because she did not receive a sufficient opportunity to present documentary proof of her residency. Specifically, petitioner contends that she did not receive an opportunity to present her explanation for her presence at the out-of-district address prior to respondent’s final residency determination. Petitioner further asserts that an actual visit inside the out-of-district address would have revealed that the students do not reside there, and that all of the students’ belongings are at the in-district residence. Petitioner requests a finding that the students are district residents entitled to attend respondent’s schools tuition-free.
Respondent contends that petitioner and the students reside outside of the district, and that petitioner has failed to meet her burden to establish that they do in fact reside within the district. Specifically, respondent disputes the veracity of the lease provided by petitioner for the in-district address. Respondent cites typographical errors and questions the term of the lease. Respondent further questions petitioner’s credibility with respect to the stated purpose for which she purchased the out-of-district property. Respondent requests that the appeal be dismissed.
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).
On this record, I find that petitioner has provided sufficient proof of residency within the district. Petitioner offers a reasonable explanation of her presence at the out-of-district address with her children, namely, that at that time she was not working as the result of her employment circumstances and that she was engaged in renovation of the out-of-district residence. Petitioner was not afforded an opportunity to present this explanation to respondent as it did not respond to her May 22, 2016 letter which requested a meeting with a “head administrator.” Petitioner has also submitted further documentary evidence in support of her residence within the district including a utility bill, a cell phone bill, bank statements, and her driving abstract. Additionally, petitioner provided a lease for the in-district residence for a five-year term beginning on January 1, 2013 and concluding on January 31, 2018. Respondent cites certain inconsistencies in the dates and typographical errors in the lease and questions the veracity of petitioner’s statements that she has resided at the address since 2008 because this lease does not cover the period from 2008-2013. However, I note that the absence of a lease covering the period of 2008 through 2013 is not relevant to or dispositive of petitioner’s current residency status. In addition, the lease “effective date” of December 19, 2013 appears to be a typographical error, as the lease was signed on December 28, 2012 with a “start date” of January 1, 2013 and a “termination date” of January 31, 2018. Because the lease provided by petitioner is applicable to the present residency status of petitioner’s children, and is accompanied by a sworn affidavit of petitioner’s parents confirming the details of the lease arrangement, I find that respondent’s arguments in this regard are therefore unpersuasive.
Moreover, respondent’s surveillance evidence is not sufficient to overcome petitioner’s evidence. Specifically, while the surveillance evidence showed that petitioner and the students were physically present at the out-of-district address on several mornings, petitioner admits as much and has provided a reasonable explanation for her presence at the out-of-district address. Respondent’s remaining argument is that the students admitted their non-residency to the district’s attendance secretary. Given the young age of the students, and the evidence in the record, I do not afford significant weight to the students’ alleged statements.
Therefore, on this record, I find that respondent’s limited evidence, which did not include surveillance at the in-district address, is not dispositive in light of petitioner’s explanation and documentary evidence. I acknowledge, however, respondent’s credibility concerns based on an affidavit from the director, who averred that petitioner characterized the out-of-district address as her “summer home” and that she “often divides her time” between the in-district and out-of-district address. While respondent is free to conduct further investigation of petitioner’s residency and render a determination with respect thereto, consistent with the procedures and protections outlined in 8 NYCRR §100.2(y), I find that, on this record, petitioner has met her burden of proof.
In light of this disposition, I need not consider the parties’ remaining contentions.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent permit petitioner’s children to attend school in the City School District of the City of New Rochelle without the payment of tuition.
END OF FILE
 I note that by letter dated July 8, 2016, respondent confirmed that it would not oppose petitioner’s request for a stay. However, respondent has not conceded its position and continues to assert that petitioner is not a district resident.
 I note that the copy of the petition submitted to my Office of Counsel by petitioner does not include the lease or the supporting affidavit from petitioner’s parents referenced by respondent. However, respondent subsequently filed with my Office of Counsel a copy of the petition with which it was served on June 21, 2017 which includes said lease and affidavit. Because these documents were served on respondent with the petition in accordance with Commissioner’s regulation §275.8(a) and respondent has addressed them herein, I have considered them as part of the record before me. (cf. Appeal of Students with Disabilities, 52 Ed Dept Rep, Decision No. 16,454).
 The director also avers that, on June 14, 2016, the students told their teacher that “they were moving to their grandparents’ residence… in order to continue to attend the District’s schools.” Respondent suggests that this bolsters its determination of petitioner’s non-residency. However, I do not find that the vague nature of this alleged statement, which postdates respondent’s residency determination, demonstrates the students’ lack of residency within the district.