Decision No. 17,487
Appeal of VLADIMIR McGUFFIE, on behalf of his son XAVIER, from action of the Board of Education of the Elmont Union Free School District regarding residency.
Decision No. 17,487
(August 16, 2018)
Edward Galison, P.C., attorneys for petitioner, Edward Galison, Esq., of counsel
Colum P. Nugent, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that his child (the “student”) is not a district resident. The appeal must be dismissed.
Prior to the events described in this appeal, the student attended school in respondent’s district. Petitioner and the student purported to live at an address located within respondent’s district (the “in-district address”).
During the 2017-2018 school year, the principal of the student’s elementary school informed the district’s registrar that the student stated that he lived outside of respondent’s district in Jamaica, New York (the “out-of-district address”). The district proceeded to conduct surveillance of the in-district and out-of-district addresses on seven weekdays in October 2017 and one weekday in November 2017. On three occasions, the student and his mother were seen departing from the out-of-district address in the morning. Additionally, on two mornings, the investigator surveilled the in-district address between 6:00 a.m. and 8:45 a.m. Although the investigator did not observe anyone coming to or going from the in-district address on these mornings, the student was nevertheless present in school. Also, on two afternoons, the student was picked up from school and driven to the in-district address where, shortly thereafter, he and his mother re-entered the car and left the in-district address. On one of these occasions, the investigator confirmed that the student arrived at the out-of-district address.
On January 11, 2018, respondent conducted a formal residency hearing presided over by a hearing officer. At the hearing, petitioner and the district introduced testimonial and documentary evidence.
In a written decision received by the superintendent on February 12, 2018, the hearing officer concluded that the student was not a resident of respondent’s district. This appeal ensued.
Petitioner contends that, subsequent to the residency hearing, he and the student’s mother executed a stipulation of settlement which gives petitioner sole physical custody of the student. Petitioner argues that this renders the student a district resident who is entitled attend respondent’s schools without the payment of tuition.
Respondent contends that the appeal must be dismissed as untimely. Respondent further asserts that the hearing officer correctly determined that the student is not a district resident, as the surveillance evidence consistently depicted the student at the out-of-district address.
The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).
Here, the hearing officer rendered a decision determining that the student was not a resident of respondent’s district on February 12, 2018. The record reflects that this decision was sent to petitioner via mail on February 14, 2018. The record does not indicate when petitioner received the decision; therefore, affording the usual five days for mailing and excluding Sundays and holidays, the petition was required to be served by March 23, 2018. Petitioner’s affidavit of service indicates that the petition was served on March 28, 2018. Petitioner offers no explanation or good cause for the delay in the petition, as required (8 NYCRR §275.16). Although delays in residency cases have been excused where, inter alia, the facts suggest residency in the district, the delay is de minimis, and requiring the student to re-apply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of Kowalewski, 56 Ed Dept Rep, Decision No. 17,013; Appeal of Manfredo, 56 id., Decision No. 16,943; Appeal of Jean-Louis, 49 id. 400, Decision No. 16,062), those factors are not present here. Moreover, I note that petitioner’s reply does not respond to respondent’s affirmative defense that the appeal is untimely. Accordingly, I find the appeal is untimely, warranting dismissal.
Even if the appeal were not dismissed as untimely, it would be dismissed on 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).
The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).
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).
The stipulation of settlement provides petitioner with “residential custody” of the student, and include weekends and one afternoon per week “from 3:30 p.m. until 7:00 p.m.” However, petitioner still bears the burden of proof in this appeal to show that the student physically resides within the district and intends to remain therein (see Appeals of G.G., 52 Ed Dept Rep, Decision No. 16,397, Gill v. Bd. of Educ., Williamsville CSD, et al.; Supreme Court, Erie County; Decision and Order dismissing the petition; August 15, 2013; Appeal of Perry, 49 Ed Dept Rep 190, Decision No. 15,995). Upon review of the record, petitioner has failed to meet this burden.
Respondent conducted eight days of surveillance during October and November 2017 which generally depicted the student at, returning to, or departing from the out-of-district address. While the investigator observed the student at the in-district address once in the morning and twice in the afternoon, on each such occasion, the student proceeded to board a school bus or departed the in-district address shortly after his arrival. The surveillance evidence supports respondent’s contention that the student resides at the out-of-district address, and petitioner has produced no explanation or evidence to the contrary. While petitioner states that the student “live[s] with me on weekdays and with his [m]other on weekends,” this is contradicted by the surveillance evidence, which depicted the student at the out-of-district address on weekdays (see e.g. Appeal of Crump, 44 Ed Dept Rep 62, Decision No. 15,099). Accordingly, even if the merits of the appeal were before me, the appeal would be dismissed.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on his son’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 On October 10, 2017, the investigator conducted surveillance in both the morning and in the afternoon. On all other days, the investigator either conducted morning or afternoon surveillance.
 The investigator did not complete his surveillance on one of these afternoons because he “was eventually pulled over by police” in Jamaica, New York.
 On March 16, 2018, my Office of Counsel received a version of the petition which lacked the notice and affidavit of personal service required by 8 NYCRR §§275.9, 275.11 (see 8 NYCRR §275.8). In a letter dated March 16, 2018, my Office of Counsel returned this submission to petitioner. Petitioner thereafter served the instant version of the appeal.