Decision No. 17,275
Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.
Decision No. 17,275
(December 6, 2017)
Student Advocacy, Inc., attorneys for petitioner, Edith Rosenbaum, Esq., of counsel
Cliff A. Christophe, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Mount Vernon (“respondent”) that her son (“the student”) is not a district resident. The appeal must be sustained.
The student has been enrolled in respondent’s school district since 2013. The record is unclear as to when the student was initially classified as a student with a disability pursuant to the federal Individuals with Disabilities Education Act (“IDEA”). However, the record indicates that during the 2016-2017 school year, the student was placed by respondent’s Committee on Special Education (“CSE”) at an out-of-district approved private school. Upon annual review on July 24, 2017, the CSE recommended continuation of that placement for the 2017-2018 school year (see 8 NYCRR §200.6[j]).
During the months of June 2017 through August 2017, respondent conducted a “re-registration” of all students enrolled in the district. Petitioner asserts that she attempted to re-register the student on June 28, July 12 and July 24, 2017, by submitting to respondent a lease agreement which names petitioner’s adult daughter and the student as tenants. By letter dated July 26, 2017, respondent’s director of student services (“director”) notified petitioner that she had concluded that the student was not a district resident based on petitioner’s “[f]ailure to re-register [the] child” and “[f]ailure to provide requested documentation in letter dated June 29, 2017.” The July 26, 2017 letter further notified petitioner that the student was no longer eligible for educational services in the district and that the student’s last day at the approved private school would be August 9, 2017, at which point he would be excluded from the district’s enrollment. The letter further advised petitioner that she could provide the necessary documentation on one of the dates that the district was conducting re-registration and/or appeal the director’s decision to the Commissioner of Education. On August 2, 2017, petitioner met with the director and submitted documentary evidence in support of her residence within the district. According to respondent, the director reviewed the proof submitted by petitioner and advised petitioner that the documents she provided did “not sufficiently establish residency” in the district. This appeal ensued. On August 17, 2017, petitioner’s request for interim relief was granted.
Petitioner argues that the district’s failure to accept the numerous proofs of residency that she submitted renders the district’s decision to deny the student’s re-registration application arbitrary and capricious. She further contends that the district’s insistence that a statement be provided from her landlord as the only acceptable proof of residency is inconsistent with the district’s policy and the list of acceptable proofs of residency listed on the district’s website. Petitioner also claims that she has lived with her adult daughter and the student at an apartment located within respondent’s district (“in-district address”) since 2013. Finally, petitioner objects to respondent’s submission of affidavits in support of its verified answer.
Respondent argues that the appeal must be dismissed because petitioner has failed to state a claim upon which relief can be granted. Respondent further argues that petitioner has not provided proof that she resides within the district, nor has she made a permanent transfer of custody and control of the student to a person who resides within the district. Respondent asserts that it has confirmed that petitioner is a resident of the City School District of the City of New York and that since petitioner does not reside within its district, the student is not entitled to attend respondent’s schools without the payment of tuition.
I will first address a procedural matter. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition, together with all of respondent's affidavits, exhibits and other supporting papers, within 20 days from the time of service of the petition. The date upon which personal service was made upon respondent shall be excluded in the computation of the 20-day period. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).
According to petitioner’s affidavit of service, respondent was served with the petition on August 9, 2017. Respondent therefore had until August 29, 2017 to serve its answer, affidavits, exhibits and other supporting papers. Respondent timely served its answer on August 18, 2017; however, the answer did not include any affidavits, exhibits or other supporting papers. Petitioner asserts that respondent served its supporting affidavits and exhibits on September 11, 2017 and argues that the submission should be disregarded. Petitioner argues that the supporting affidavits and exhibits were required to be submitted together with the answer and that, even if they were not required to be submitted together with the answer, they were submitted outside of the 20-day time period. Indeed, the supporting affidavits and exhibits were served outside the 20-day time period and respondent gives no reason for the delay; therefore, I decline to consider them as part of the answer (see Appeal of Zayas, 53 Ed Dept Rep, Decision No. 16,546).
Further, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 shall submit an application to my Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]). Respondent did not submit an application in accordance with the above. Therefore, I decline to consider the supporting affidavits and exhibits pursuant to §276.5.
Turning to 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).
On this record, I find that petitioner has met her burden of proof. The record reveals that petitioner attempted to re-register the student in respondent’s district on at least four separate occasions. In support of her application to re-register the student, petitioner provided respondent with multiple proofs of residency including a signed affidavit from petitioner, which stated that she has resided at the in-district address since 2013 and continues to reside at that address with the student in an apartment leased by her adult daughter. Petitioner also submitted several other forms of documentary evidence all bearing the in-district address such as: a copy of the lease agreement which lists her adult daughter as the tenant and the student as an occupant; a New York State identification card issued in July 2017; petitioner’s voter registration card showing April 19, 2016 as the date of her registration; petitioner’s social security card which was issued in November 2016; a prescription from petitioner’s doctor dated April 6, 2017; the student’s 2016 wage and tax statement; notices mailed to petitioner from various entities including the student’s approved private school, Urban League of Westchester County, respondent’s CSE, Westchester County, and the city Youth Bureau; a signed statement from a caseworker at the Department of Social Services stating that the student resides with petitioner at the in-district address; and two affidavits from counselors who provide services to the student which state that they conduct home visits, which occur at the in-district address, and that it is their belief that petitioner and the student reside there. Finally, petitioner submitted a third-party sworn residency statement from her adult daughter which states that she, petitioner and the student all live at the in-district address, which is an apartment that she leases.
Respondent relies on a New York State identification card, issued on November 29, 2013, which respondent alleges was submitted to the district by petitioner in June 2017 which indicates that her address is in New York, New York. However, the record includes a more recent New York State identification card issued on July 25, 2017, which bears the in-district address. Further, as noted above, the record also contains documentary evidence listing the in-district residence as petitioner’s address from 2016 – well before petitioner attempted to re-register the student in June and July 2017.
Respondent also maintains that petitioner’s proofs of residency are insufficient to establish her residency within the district. Specifically, respondent argues that petitioner has not produced a mortgage statement, property tax bill or a lease that demonstrates that petitioner resides at the in-district address. Respondent also avers that the third-party statement submitted by petitioner’s adult daughter is insufficient and that petitioner has failed to provide her own pay stub, or income tax form with the in-district address; only the student’s pay stub and income tax forms. In response, petitioner states that the landlord of the apartment where she resides has refused to provide her with a signed statement. Moreover, petitioner asserts that she is unemployed and therefore cannot provide a pay stub or income tax form with the in-district address. As detailed above, petitioner has provided multiple forms of documentary evidence from several sources.
On the totality of this record, I find that petitioner has met her burden of proof to establish residency. She has submitted multiple forms of documentation listing her in-district residence and affidavits from herself and her adult daughter, as well as two third-party affidavits, establishing her residency. In addition, I find petitioner’s explanation for the lack of certain documents credible. I also find that there is insufficient evidence in the record to support respondent’s determination that petitioner is not a district resident.
THE APPEAL IS SUSTAINED.
END OF FILE
 The record does not indicate what address petitioner used to enroll the student in respondent’s district.
 I note that the June 29, 2017 letter is not included in the record before me, despite petitioner’s claim that it is attached to the petition as an exhibit. While acknowledging that the letter is missing from petitioner’s exhibits, respondent also failed to provide a copy of the letter in its answer.
 Petitioner asserts that her adult daughter and the student are listed on the lease.
 I note that respondent’s affidavit of service indicates that the supporting affidavits were served on August 18, 2017. However, the affidavit appears to be a duplicate of the affidavit of service attached to respondent’s answer. Further, the supporting affidavits are dated September 6 and 8, 2017 and the mailing envelope indicates that it was postmarked on September 11, 2017.
 The counselors are employed by two different not-for-profit agencies.
 Respondent does not indicate to whom petitioner submitted this identification card and, in her reply, petitioner denies respondent’s allegation.