Appeal of LOLI JORDAN, on behalf of her sons JORDAN and JAYDEN MOSLEY, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 17,486

(August 14, 2018)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination by the Board of Education of the East Islip Union Free School District (“respondent”), that her sons, Jordan and Jayden Mosely (the “students”), are not district residents.  The appeal must be sustained.

In or about December 2016, the district received information that petitioner and the students were not residents of the district eligible to attend district schools on a tuition-free basis.  The information received by the district indicated that petitioner and the students resided outside the district at a location in Brentwood, New York (the “out-of-district address”) which, according to district records, is the students’ father’s residence.  The district thereafter initiated a residency investigation, which was conducted by a district security guard (the “investigator”).  The investigator surveilled the out-of-district address on four days in January 2017.  This evidence depicted the students departing from, or returning to, the out-of-district address.  Based upon this evidence, respondent determined that the students were not residents of its district.

In a letter dated January 26, 2017, the superintendent informed petitioner that the students would be excluded from respondent’s schools as of February 3, 2017.  The record reflects that petitioner met with the superintendent on January 30, 2017 to discuss the students’ residency.  While the parties dispute exactly what transpired during this meeting, the record reflects that it did not affect the superintendent’s determination that the students did not reside within respondent’s district.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 10, 2017.

Petitioner asserts that she and the students reside at the in-district address.  Petitioner asserts that the students occasionally stay with their father at the out-of-district address but maintains that they spend at least five days a week with her at the in-district address.  Petitioner further asserts that she and the students’ father are divorced and maintain separate residences.

Respondent contends that the surveillance evidence conclusively demonstrates that petitioner and the students reside at the out-of-district address. Consequently, respondent argue that the students are not district residents and may not attend respondent’s schools without the payment of tuition.

Initially, I must address the procedural issues.  Respondent argues that petitioner failed to comply with §275.9 of the Commissioner’s regulations by “utilizing and filing an affidavit of service in the form set forth in” that regulation.  While I note that petitioner’s process server did not fill in the language on the form with precision, the language in the affidavit is otherwise identical to the language used in 8 NYCRR §275.9.  Moreover, the regulation requires that the language be “substantially” similar to that in the regulation and, upon review of the affidavit, I find that, except for the title of the individual served, it identifies all other material information pertaining to service; namely, a description of the process server (name, over the age of 18 and not a party to the proceeding); the name of the individual served; the manner in which service was effectuated (“by delivering to and leaving with”); the date and location of service; and a description of the documents served (see Appeal of Pulizzi, et al., 57 Ed Dept Rep, Decision No. 17,249; cf. Appeal of Rodriguez, 56 id., Decision No. 16,971).  While, as noted above, the title of the individual served was not included in petitioner’s affidavit of service, I note that respondent does not argue, for example, that such individual was not authorized to accept service or that service was otherwise improper.  Therefore, I find that, on this record, petitioner’s affidavit of service was sufficient.

On March 6, 2017, subsequent to the service and filing of respondent’s memorandum of law, petitioner submitted a document entitled “Response to Affirmation in Opposition.”  Although not labeled as a reply, I note that where, as here, petitioner is not represented by counsel, a liberal interpretation of the rules governing appeals to the Commissioner pursuant to Education Law §310 is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Accordingly, I accept petitioner’s submission as in the nature of a reply to respondent’s answer for purposes of §§275.3 and 275.14 of the Commissioner’s regulations, to the extent it is responsive to new material or affirmative defenses set forth in respondent’s pleadings.  In this regard, I note that 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed petitioner’s submission, 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.

Turning to the merits, Education Law §3202(1) provides, in pertinent part:

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 S.L., 57 Ed Dept Rep, Decision No. 17,187).  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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935).  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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

First, although petitioner claims that she and the students’ father live apart, petitioner has not asserted or proven that the students divide their time between her in-district address and their father’s out-of-district address.  Therefore, the students’ residency must be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

Although the evidence submitted by both parties is not overwhelming, upon review of the record, I conclude that petitioner has met her burden of proving that the students reside within respondent’s district. In support of her claim of residency, petitioner provides information printed from the New York Department of Motor Vehicles’ website reflecting registration of her vehicle at the in-district address; “third party residency statements” from the owner of the in-district address and another individual who resides as this address stating that petitioner and the students reside there; and website printouts from credit card accounts belonging to petitioner which bear the in-district address.  Petitioner also sets forth a reasonable explanation for the students’ presence at the out-of-district address; namely, that the students’ father resides at the out-of-district address and that the students visit with him “about two nights” per week.[1]

In support of its argument, respondent relies upon its surveillance evidence.  This evidence, however, is limited and inconclusive.  Respondent conducted four days of surveillance on January 17, 21, 23 and 25, 2017 which can be summarized as follows:

• January 17: At the conclusion of the school day, Jordan was observed entering a vehicle parked at respondent’s high school. The investigator asserts that he followed the vehicle until it arrived at the out-of-district address and observed Jordan and a female driver enter the residence.
• January 21: At approximately 11:50 a.m., Jordan was observed exiting the out-of-district address and entering a vehicle which proceeded to respondent’s high school, where he was dropped off and entered the high school building.[2]  At approximately 3:50 p.m., the investigator observed Jayden enter a vehicle parked at respondent’s high school. The vehicle was followed to the out-of-district address and the investigator observed Jayden, the male driver and two females enter the residence.
• January 23:  At approximately 6:20 a.m., the investigator observed Jordan exit the out-of-district address and enter a vehicle parked in the driveway.  The investigator followed the vehicle to the in-district residence where Jordan entered the residence.  A short time later, the investigator observed Jordan and a female student leave the residence and proceed to respondent’s high school.  The investigator also observed Jayden exit the out-of-district address at approximately 7:40 a.m. and enter a vehicle parked in the driveway. The investigator followed the vehicle to respondent’s middle school where the investigator observed Jayden enter the building.
• January 25: At approximately 6:15 a.m., the investigator observed Jordan exit the out-of-district residence and enter a vehicle parked in the driveway. The investigator followed the vehicle to the in-district residence, which Jordan entered before being driven to respondent’s high school.  At approximately 7:35 a.m., the investigator observed Jayden exit the out-of-district residence and enter a vehicle parked in the driveway, from which he dropped off at respondent’s middle school.

Respondent’s surveillance evidence is limited and, as a result, does not rebut the evidence submitted by petitioner.  Indeed, the surveillance evidence is consistent with petitioner’s explanation that the students visit their father at the out-of-district address approximately twice per week.  Further, respondent’s surveillance evidence, which is limited with respect to Jordan, is even more limited with respect to Jayden:  while the investigator claims to have observed Jordan at the out-of-district address on all four surveillance dates, he only observed Jayden at the out-of-district address on two occasions.  Thus, on this record, I cannot find that respondent’s surveillance evidence sufficiently rebuts petitioner’s evidence (see Appeal of J.R., 57 Ed Dept Rep, Decision No. 17,184).

Although the evidence on both sides is far from overwhelming, I find that, on this record, petitioner has met her burden of proof and that respondent’s determination that the students do not reside in the district must be set aside.  If respondent remains concerned that petitioner and the students do not actually reside within its district, it may collect evidence through surveillance, home visits, or other means (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).  While respondent is free to investigate further in accordance with §100.2(y) of the Commissioner’s regulations, in the interim, it must admit the students to its schools (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the students to the schools of the district without the payment of tuition.

END OF FILE