Decision No. 17,493
Appeal of CHRISTOPHER LARAQUE and CHRISTINA CASTELLANO, on behalf of their daughter SAVANNAH LARAQUE, from action of the Board of Education of the East Rockaway Union Free School District regarding residency.
Decision No. 17,493
(August 21, 2018)
Paul Ajlouny & Associates, P.C., attorneys for petitioner, Edward J. Nitkewicz, Esq., of counsel
Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly. Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the East Rockaway Union Free School District (“respondent”) that their daughter (“the student”) is not a district resident. The appeal must be dismissed.
The student has attended respondent’s district since kindergarten, based on the assertion that she lived with petitioners at an address located within the district (the “in-district address”). Although it is not entirely clear when petitioners stopped living together, at the time the petition in this matter was filed, petitioner Laraque (the “student’s father”) resided at the in-district address, and petitioner Castellano (the “student’s mother”) resided at an address located outside of the district (“out-of-district address”). Pursuant to an order of custody and visitation signed by a referee on October 22, 2012, petitioners have joint legal custody of the student. However, the order also states that primary physical custody of the student is with the student’s mother.
According to respondent, in February 2017, it received “a report from a member of the community” that the student did not reside in the district and therefore, it assigned an administrator to conduct surveillance of the in-district address. In an affidavit submitted with this appeal, respondent’s superintendent of schools (the “superintendent”) states that, “[a]ccording to that administrator, he conducted surveillance on four or five different dates, during the morning when petitioners’ child would be expected to be leaving for school” and that the student was only seen at the in-district address “on one of those dates.”
According to respondent, in May 2017, “additional information was provided to the [d]istrict” that the student lived at the out-of-district address with her mother, and that the student’s father resided with his girlfriend in Brooklyn. Thereafter, respondent retained an investigator to conduct surveillance. The superintendent, in her above-mentioned affidavit indicates that:
[t]he investigator reported that between May 25, 2017 and June 20, 2017, surveillance was conducted at the [d]istrict address on 11 separate school mornings, around the time that petitioners’ child would be expected to leave for school[, and that the student] was observed at the [d]istrict address on only one of those 11 surveillance dates (emphasis omitted).
By letter dated July 12, 2017, respondent’s assistant superintendent for finance and operations (the “assistant superintendent”), notified the student’s father that the district had “become aware” that he and the student no longer resided within the district. The letter further advised that the student would be excluded from attending school in the district effective as of July 21, 2017. Thereafter, petitioners requested a residency review.
On August 18, 2017, petitioners met with the superintendent and the assistant superintendent. In her affidavit, the superintendent states that petitioners indicated that, despite a 2012 order of custody and visitation granting primary physical custody to the student’s mother, “they share custody of the student, and that she lives with both of them.” The superintendent also states that the student’s father indicated that he and the student sometimes stay at his girlfriend’s house, but that they reside at the in-district address, and that he provided a mobile telephone bill and credit card bill bearing the in-district address. According to the superintendent, during the meeting, petitioners stated that the student had “her own room” at the in-district address and the student’s father invited the district to conduct a home visit. At the conclusion of the meeting, petitioners were advised that the superintendent “would review all the evidence in this case and issue a determination shortly.”
Approximately one hour after the conclusion of the meeting, the superintendent, the assistant superintendent and the interim principal of respondent’s junior-senior high school conducted a home visit of the in-district address. They were admitted into the home by the student’s aunt. In her affidavit, the superintendent states that the student’s aunt directed them to a second-floor bedroom which “did not appear to be occupied by a school-aged female” and that “the appearance and contents of the bedroom indicated that it was used primarily by an adult male.”
By letter dated August 21, 2017, the superintendent notified petitioners of her determination that the student was not a district resident and therefore, not eligible to attend the schools of respondent’s district. This appeal ensued. Petitioners’ request for interim relief was denied on October 19, 2017.
Petitioners claim that the student’s “residential time is essentially divided between petitioner’s [sic] two separate households and both petitioners have assumed day to day responsibility for [the student’s] care and education.” Petitioners state that they “have jointly designated the residence of [the student] for purposes of her education to be with her father [at the in-district address].” In support of their petition, petitioners submit sworn affidavits from ten neighbors (“affidavits”) to attempt to prove that the student resides with the student’s father at the in-district address. Additionally, petitioners submit photographs of a bedroom and the contents of a closet and dresser drawers.
Respondent contends that the appeal must be dismissed because petitioners have not met their burden of proof. Respondent asserts that its determination was based on substantial and credible evidence, in compliance with applicable laws and regulations, and was therefore not arbitrary or capricious. Finally, respondent argues that the neighbors’ affidavits must be excluded as untimely and that they are not credible.
I will first address the procedural matters. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). 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 the reply, 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.
By letter dated December 4, 2017, respondent requested permission pursuant to 8 NYCRR §276.5 to submit a sur-reply affirmation to respond to the new information raised in petitioners’ reply. 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Because I am not considering the new material raised in petitioners’ reply, there is no need for me to consider respondent’s sur-reply or any of the parties’ subsequent submissions.
With respect to respondent’s request that I exclude the affidavits submitted by petitioners, I note that by letter dated October 13, 2017, respondent was notified by my Office of Counsel that pursuant to my authority under 8 NYCRR §276.5, the affidavits were accepted for my consideration. I note that respondent was notified of its right to serve and file a response to the affidavits which it did on October 17, 2017.
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).
Despite a 2012 custody order awarding primary physical custody to the student’s mother, petitioners claim that the student “spends more time at her father’s home than the custody and visitation order provides for” and that her “time is essentially divided” between the in-district and out-of-district addresses. As proof of the student’s residency, petitioners submit photographs and affidavits.
I note that the petition includes no reference to or description of the photos. However, even assuming, arguendo, that the photographs depict the student’s bedroom at the in-district address, I do not find them to be persuasive evidence of the student’s residency because they were not provided to the district at the residency review held on August 18, 2017 and differ greatly from the description of the home visit conducted that the same day. In an affidavit, the superintendent described the student’s purported bedroom. She states that it contained the following:
one twin sized bed, and a wooden dresser with various personal articles on it, including a man’s watch, deodorant, a bottle of men’s cologne or aftershave, a man’s bracelet, a cup with change in it, and a pile of papers bearing the father’s name.
She further states that the dresser drawers, closet, and two garbage bags in the room contained men’s clothing and that the “only possible evidence of a school-age female in the alleged bedroom was a small plastic chest, which contained only some underwear and socks.” Finally, she stated that the room and “the entire house” contained no toys, books, or other items for a school-aged child, except for a doll which was “in a room by the front door.” The superintendent further notes that at the time of the home visit, the room did not contain “the girl’s toiletries,” “the jewelry box, shampoo or powder,” the “child’s backpack,” or the “nameplate” bearing the student’s name as depicted in the photographs submitted by petitioners.
Petitioners also rely on ten form affidavits from ten neighbors in an attempt to establish that the student resides at the in-district address. The form language includes a statement that the affiant is a resident of East Rockaway and knows the student’s father who “resides” at the in-district address. The affidavits include a space for the affiant to fill in their name, address, how many years they have know the student’s father and how many years he has been living at the in-district address. The form language also includes a statement that the affiant has known the student:
for more than 7 years and personally know[s] that she lives and sleeps at [the in-district address] with her father. I have continuously seen her playing in the neighborhood, going to and from sports activities, and going to and from school during the year. I see her on a constant and almost daily basis at [the in-district address] ... over the past 7 years.
Although the form language indicates that the affiant has known the student for seven years, I note that one affiant indicates that she has known the student’s father for only five years.
The affidavits include other inconsistencies about the length of time that the affiant has known the student’s father and how long the affiant has known that he lives at the in-district address. For example, one affiant indicates that he has known the student’s father for “approximately 30 years” but also indicates that the student’s father has “been residing at [the in-district address] as a neighbor for approximately 36 years.” Similarly, another affiant indicates that he has known the student’s father for “approximately 20 years” but that the student’s father has “been residing at [the in-district address] as a neighbor for approximately 30 years.”
Also, the form statement in the affidavits directly contradicts petitioners’ claim that the student’s “residential time is essentially divided between petitioner’s [sic] two separate households.” The form statement is also contradicted by respondent’s surveillance evidence which indicates that on fifteen or sixteen mornings, when the student would be expected to be leaving for school, she was seen only twice at the in-district address. Petitioners, who are represented by counsel, submit no reply or other evidence to rebut respondent’s assertions. Therefore, on this record, I find that petitioners have not met their burden of proof.
Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 In its affidavit in opposition to petitioner’s request for a stay, respondent indicates that the administrator who conducted the surveillance is no longer employed by the district.
 I note that respondent does not include the investigator’s report of the surveillance.
 The ten sworn affidavits were not submitted with the petition. By letter dated October 11, 2017, petitioners’ attorney wrote to my Office of Counsel and stated that the affidavits “were inadvertently omitted from [the] petition.” By letter dated October 11, 2017, respondent objected to the submission; however, the affidavits were accepted pursuant to my authority under 8 NYCRR §276.5.
 While several photographs are attached to the petition, the petition contains no explanation as to what the photographs purport to depict.
 It is unclear whether petitioners submitted the same affidavits to respondent. In its answer, respondent states that “the [d]istrict did receive affidavit-like documents following the issuance of the August 21, 2017 final determination, but they were found not to be credible” and in its supplemental affirmation in opposition to petitioners’ request for interim relief, respondent states that “the [d]istrict had been provided with the neighbor affidavits prior to the instant appeal, [and] the [d]istrict determined that they were not credible.”