Decision No. 17,313
Appeal of A.D., on behalf of her grandson, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.
Decision No. 17,313
(January 24, 2018)
Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that her grandson, (the “student”) is not a district resident. The appeal must be dismissed.
The record reflects that the student was registered in respondent’s district on February 13, 2015. At that time, petitioner identified an apartment located within respondent’s district as the location where she and the student resided (the “in-district address”).
On or about September 4, 2015, the student indicated during class that he lived outside the district in Rye, New York (“out-of-district address”). Subsequently, a residency investigation was commenced which included surveillance. On two consecutive weekdays, once in the early morning and once in the afternoon, the in-district address was surveilled and neither petitioner nor the student were observed. On seven weekday mornings, surveillance was conducted at the out-of-district address and on all occasions either petitioner, the student or both were observed.
On November 5, 2015, respondent’s Assistant Superintendent for Business Operations (“assistant superintendent”) wrote to petitioner and indicated that surveillance had demonstrated that petitioner resided outside of the district. The assistant superintendent invited petitioner to attend a meeting on November 10, 2015 to discuss the student’s residency. Petitioner met with the assistant superintendent as scheduled. The assistant superintendent avers that, during this meeting, petitioner confirmed that she moved from the in-district address to the out-of-district address because “it was too expensive” and that she was residing with her husband, from whom she alleged she was separated. The assistant superintendent further avers that, during this meeting, petitioner claimed for the first time that she was homeless as defined by the McKinney-Vento Homeless Assistance Act (“McKinney-Vento”).
By letter dated November 12, 2015, the assistant superintendent confirmed that petitioner resided with her husband at the out-of-district address and informed petitioner of her determination that petitioner’s residence was fixed, regular and adequate and that petitioner, therefore, was not homeless under McKinney-Vento. The letter further informed petitioner that the student would be excluded from respondent’s schools effective December 11, 2015.
As discussed below, the record indicates that, on December 11, 2015, petitioner personally served a verified petition appealing respondent’s determination to exclude the student on the district clerk. Upon receipt of this petition, respondent permitted the student to remain enrolled in respondent’s schools.
By letter dated December 14, 2015, the assistant superintendent informed petitioner that, based on a review of the papers served on respondent, she was concerned that petitioner did not understand the appeal process. The assistant superintendent urged petitioner to contact respondent’s homeless liaison for assistance and enclosed a form petition in conformity with the Commissioner’s regulations. The record indicates that petitioner did not avail herself of the form petition or the opportunity to speak with the homeless liaison. This appeal ensued. Petitioner’s request for interim relief was denied on January 6, 2016.
Petitioner admits that she resides at the out-of-district address but submits a “Petition to Recover Possession of Real Property Non-Payment” against her as tenant of the in-district apartment as evidence that she and the student were evicted from and did not voluntarily vacate the in-district address. Petitioner requests “Interim relief” permitting the student to attend respondent’s schools during the pendency of this appeal. Petitioner also, in a cover letter transmitted with the petition, “evok[es] [her] right to have [the student] remain in the school district under the McKinney-Vento Act.”
Respondent asserts that the appeal must be dismissed for improper service. Respondent maintains that the petition fails to state a claim upon which relief may be granted and that neither petitioner nor the student reside within the district.
The appeal must be dismissed because petitioner herself served the district clerk with the petition. Section 275.8 of the Commissioner’s regulations requires that a non-party over the age of 18 serve all pleadings. Although petitioner’s affidavit of service is sworn to by a person not a party to this appeal, respondent has submitted an affidavit from the assistant superintendent attesting that all the pleadings were in fact served on the district clerk by petitioner. Petitioner submits no reply to refute respondent’s allegation. On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met her burden of proving that proper service was made on respondent (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623). Therefore, on this record, I am constrained to conclude that the petition and notice of petition were not properly served, and the appeal must be dismissed (Appeal of A.F., 56 Ed Dept Rep, Decision No. 17,030; Appeal of Prusak, 54 id., Decision No. 16,659; Appeal of Hughes, 48 id. 229, Decision No. 15,865).
Although the appeal must be dismissed on procedural grounds, it would also be dismissed on the merits.
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). At the outset, it is unclear from the record whether petitioner is asserting residency within the district or homelessness pursuant to McKinney-Vento. As noted above, petitioner submitted a form petition which only requests “Interim relief” permitting the student to attend respondent’s school during the pendency of this appeal. However, in a separate cover letter, petitioner indicates that she is “evoking [her] right to have [the student] remain in the school district under the McKinney-Vento Act.” In either case, she has failed to meet her burden of proof.
With respect to residency, petitioner’s claims must be dismissed as moot. The sole relief sought by petitioner is interim relief pending a final resolution of this appeal, and such request was denied on January 6, 2016. Because petitioner’s requested relief has already been denied and petitioner does not seek any other relief as to the student’s residency, any such determination would be advisory in nature and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853; cf. Appeal of Kaufmann, et al., 57 Ed Dept Rep, Decision No. 17,250). Moreover, petitioner acknowledges that she resides at the out-of-district address with her husband, a statement which, without further explanation, precludes a finding that she and the student are residents of respondent’s district (see Appeal of Rubio, 57 Ed Dept Rep, Decision No. 17,279). With respect to homelessness, petitioner fails to establish, or even allege, that the out-of-district address is not a fixed, regular and adequate night-time residence. Therefore, whether construed as a residency or homeless appeal, petitioner has wholly failed to meet her burden of proof.
Finally, I note that the assistant superintendent’s November 12, 2015 determination that the student was not homeless did not include the form homeless petition as required by §100.2(x)(7)(iii)(c)(i) of the Commissioner’s regulations. Although the form petition was provided to petitioner with the assistant superintendent’s December 14, 2015 letter, I remind respondent to ensure that it fully complies with the Commissioner’s regulations in the future.
In light of this disposition, I need not address the parties’ remaining contentions. However, I note that petitioner retains the right to reapply for admission on behalf of the student at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner purports to be the legal guardian of the student, which has not been contested by respondent.
 At the time this dispute arose, respondent was not obligated under McKinney-Vento to immediately enroll the student during the pendency of the dispute, including all available appeals, regarding eligibility, school selection or enrollment. However, effective October 1, 2016, McKinney-Vento currently requires automatic enrollment under such circumstances (see 42 U.S.C. §11432[g][E][i]; see Education Law §3209[c]; 8 NYCRR §100.2[x][ii][c]).