* Subsequent History: Matter of Dukes v Elia; Supreme Court, Albany County (Koweek, J.); Judgment dismissed petition to review; June 26, 2019. *

Appeal of G.D. and D.D., on behalf of their children D.D. and S.D., from action of the Board of Education of the Cold Spring Harbor Central School District regarding residency and transportation.

Decision No. 17,541

(November 26, 2018)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Cold Spring Harbor Central School District (“respondent”) that her children D.D. and S.D. (“the students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.   The appeal must be dismissed.

Petitioners have initiated two prior appeals to the Commissioner pursuant to Education Law §310 in which they asserted that their children were homeless (Appeal of D.D. and G.D., 57 Ed Dept Rep, Decision No. 17,416; Appeal of D.D. and G.D., 57 id., Decision No. 17,127).  The facts of those appeals were set forth therein and need not be repeated here.

Briefly, petitioners enrolled the students in respondent’s school district in December 2014.  At that time, petitioners indicated that they lived at an address located within respondent’s geographical boundaries.  Petitioners were evicted from their in-district residence in 2016.  Petitioners thereafter moved to an apartment in Melville, New York (the “first Melville apartment”). Petitioners claimed that they were homeless at the first Melville apartment and, thus, entitled to designate respondent’s district as the district of origin.  Respondent determined that the students were not homeless because the first Melville apartment was fixed, regular and adequate.  Petitioners appealed this determination to me in an appeal pursuant to Education Law §310.  In a decision dated July 19, 2017, I dismissed the appeal as untimely, noting in dicta that, even if the appeal had been timely commenced, petitioners did not meet their burden of proving that the students were homeless within the meaning of McKinney-Vento (Appeal of D.D. and G.D., 57 Ed Dept Rep, Decision No. 17,127).

In September 2017, petitioners attempted to enroll the students in respondent’s district again, alleging that they still resided at the first Melville apartment.  Petitioners submitted to respondent an unsworn personal statement from petitioner D.D., an affidavit from their daughter, and a guarantor agreement for the first Melville apartment. Respondent found that petitioners’ circumstances had not changed since issuance of my decision in Appeal of D.D. and G.D., (57 Ed Dept Rep, Decision No. 17,127) and that the first Melville apartment was a fixed, regular and adequate nighttime residence.  Respondent further determined that petitioners had not provided any information suggesting that they would be required to vacate the first Melville apartment in the future.  Petitioners then filed a second appeal pursuant to Education Law §310.  In a decision dated June 25, 2018, I dismissed petitioners’ appeal, finding that petitioners had not met their burden of proving that the first Melville apartment was not a fixed, regular, and adequate nighttime residence or that petitioners were living in a shelter or other temporary accommodation as described in Education Law §3209(1)(a) and Commissioner’s regulation §100.2(x).

In August 2018, petitioners attempted to enroll the students in respondent’s district for the 2018-2019 school year.  By email dated August 31, 2018, respondent’s assistant superintendent for student services and human resources (“assistant superintendent”) informed petitioner D.D. that respondent would not enroll the students in respondent’s district because the Commissioner determined in two prior appeals pursuant to Education Law §310 that the students were neither homeless nor residents of its district (see Appeal of D.D. and G.D., 57 Ed Dept Rep, Decision No. 17,416; Appeal of D.D. and G.D., 57 id., Decision No. 17,127).  Between August 31 and September 3, 2018, petitioner D.D. exchanged emails with the assistant superintendent and respondent’s homeless liaison.  According to the record, petitioner D.D. also met with the assistant superintendent on September 4, 2018.  Following this meeting, the assistant superintendent informed petitioner D.D. in an email that, in her view:

[T]here has been no substantive change in circumstance and therefore there is no appeal to review.  Further, if it were determined that a substantial change had occurred, your last residence as determined by the Commissioner was the Melville address.

This appeal ensued.  Petitioners’ request for interim relief was granted on September 21, 2018.

Petitioners claim that they are homeless and are temporarily living at a second apartment located within the same apartment complex in Melville, New York as the first Melville apartment (the “second Melville apartment”).  Petitioners contend that they lived with petitioner D.D.’s brother-in-law at the first Melville apartment until December 2017.  At that time, petitioner D.D. asserts that she “stayed briefly with a relative in Boston” and that, thereafter, petitioners and the students “began staying with the [students’] maternal grandmother” at the second Melville apartment.[1]  Petitioners admit that the second Melville apartment is “fixed ... [and] somewhat regular,” but asserts that it is “inadequate, ... overcrowded and ... temporary.”  Petitioners contend that the students’ grandmother has serious health issues which require the presence of a home health attendant at the apartment and that this necessitates certain uses of the space. Petitioners seek a determination that the students are homeless and entitled to attend respondent’s schools tuition-free.

Respondent contends that petitioners have failed to meet their burden of proving that they are homeless or residents of its district.  Specifically, respondent argues that because petitioners’ circumstances have not changed since Appeal of D.D. and G.D. (57 Ed Dept Rep, Decision No. 17,416), they are not entitled to enroll the students in respondent’s district.  Respondent specifically asserts that, given my prior decisions concerning petitioners’ homeless status, there is no set of facts under which it could be deemed the district of origin or the district of current location.  Respondent also argues that petitioners are unfairly seeking to take advantage of the automatic stay provisions of McKinney-Vento, as evidenced by the fact that they have not established a change in circumstances.  Respondent further asserts that petitioners’ claims are barred by the doctrines of collateral estoppel or res judicata and that petitioners’ claims are moot.  Finally, respondent asserts that it acted in a lawful manner and consistent with McKinney-Vento and Education Law §3209(1) when it excluded the students from the district.

First, I must address two procedural matters.  Petitioners submitted two petitions in this matter, one for which respondent’s homeless liaison accepted service on September 14, 2018, and another served on respondent’s district clerk on September 18, 2018.  Both petitions were served within the 30-day time limitation for bringing an appeal pursuant to Education Law §310.  Petitioners do not offer an explanation for the two petitions, which contain slightly different exhibits.  Without any explanation of petitioners’ intentions in this respect, I find that the September 18, 2018 petition superseded the original petition and has become the operative petition for purposes of this appeal.

Additionally, petitioners submitted a document captioned “sur-reply” which appears to be in the nature of a reply.  This submission must be disregarded as it was not served in a timely manner, is unverified, and contains no affidavit of service.  It is well-settled that I cannot accept a reply which lacks an affidavit of verification (see Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of a Student with a Disability, 46 id. 102, Decision No. 15,454; Appeal of Principio, 39 id. 11, Decision No. 14,157) or an affidavit of service (Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,687; Matter of the Parents of Two Handicapped Children, 19 id. 361, Decision No. 10,167).  Additionally, following an extension granted by my Office of Counsel, petitioners’ reply was required to be served by October 24, 2018.  In a sur-reply affirmation submitted by respondent, which I have accepted into the record pursuant to 8 NYCRR §276.5, respondent submits a copy of the post-marked envelope indicating that the reply was mailed on October 25, 2018.  This was one day after the extension date granted by my Office Counsel.  For all of these reasons, I have not considered petitioners’ reply.

Respondent next argues that the appeal is barred by the doctrines of res judicata or collateral estoppel.  Res judicata, or claim preclusion, prevents a party from relitigating a claim which he or she had a full and fair opportunity to litigate and which was decided against him or her (Ryan, et al. v. New York Tel. Co., et al., 62 NY2d 494).  Collateral estoppel, or issue preclusion, is

a narrower species of res judicata [which] precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Ryan, et al. v. New York Tel. Co., et al., 62 NY2d 494, 500).

It is well-settled that the principles of res judicata and collateral estoppel apply in appeals pursuant to Education Law §310 (see Appeal of Bach, 32 Ed Dept Rep 499, Decision No. 12,898; Appeal of Tobin, 30 id. 315, Decision No. 12,477).

Neither doctrine applies to the facts of this case.  Respondent argues that my prior decision in Appeal of D.D. and G.D. (57 Ed Dept Rep, Decision No. 17,416) is binding such that the “subject of whether petitioners are homeless” has been conclusively decided against them.  However, my decision in Appeal of D.D. and G.D. (57 Ed Dept Rep, Decision No. 17,416) merely held that, on that record, petitioners had not met their burden of proving that respondent’s determination was arbitrary or capricious.  While I agree with respondent that my decision was binding on petitioners based upon the facts adduced in that appeal and absent a change in circumstances, here, petitioners have moved to an entirely different apartment with its own unique attributes.  Thus, I do not find that the issues presented herein are identical to the issues in Appeal of D.D. and G.D. (57 Ed Dept Rep, Decision No. 17,416).  Consequently, the doctrines of res judicata or collateral estoppel do not preclude petitioners from pursuing the instant appeal.[2]

Nevertheless, the appeal must be dismissed on the merits.  Education Law §3209(1)(a) defines “homeless child” as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

1. sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
2. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
3. abandoned in hospitals; or
4. a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;
5. an unaccompanied youth ...; or

2. a child or youth who has a primary nighttime location that is:

1. a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
2. a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....[3]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have failed to meet their burden of proving that the students meet the definition of homeless under State or federal law.  Although petitioners assert that the second Melville apartment is inadequate, they have not proven such assertions.  In the petition, petitioners assert that the second Melville address is small and overcrowded; that it only has two bedrooms; that common space is used for sleeping on couches; that their dog is “housed” at the apartment although the apartment complex does not permit dogs; and that, with limited exceptions, “[a]ll of [their] contents are in storage.”[4]  However, petitioners submit no proof of these assertions; they merely submit an unsworn statement from the students’ grandmother addressed “to whom this may concern” which states that petitioners and the students live with her, that it is “a temporary arrangement due to the space limitations and [her] personal health issues,” and that she has allowed petitioners and their children “to visit here on a temporary basis due to their current hardship and loss of permanent housing.”  Implicitly recognizing this lack of proof, petitioner D.D. requests in the petition for “reasonable time to gather our support documents.” As indicated above, petitioners bear the burden of proving a clear legal right to the requested relief in this proceeding, and petitioners have failed to meet this burden.

Moreover, there is no evidence that the second Melville apartment is temporary or transitional.  While the grandmother indicates in her unsworn statement that the housing arrangement is “temporary” and on a “limited basis,” there is no evidence that petitioners need to vacate the apartment or that there is a fixed time limit as to how long they may remain (see Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).[5]  Further, there is no evidence that petitioners or the students intend to relocate to respondent’s district in the near future.  On this record, petitioners have not established that they lack a fixed, regular and adequate nighttime residence and the appeal must therefore be dismissed.

As I have stated in the two previous appeals commenced by petitioners, although the appeal must be dismissed, petitioners retain the right to reapply for admission on behalf of the students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

I have considered petitioners’ remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE