Decision No. 17,653
Appeal of STEVIE LEACH JR., on behalf of his son JAYDEN, from action of the Board of Education of the Malverne Union Free School District regarding residency.
Decision No. 17,653
(June 12, 2019)
Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel
ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that his son (the “student”) is not a district resident. The appeal must be sustained in part and remanded.
The student was registered in respondent’s district in or about September 2017. The student’s registration paperwork indicated that he resided at an address located within respondent’s district (the “in-district address”). According to the record, the student’s grandmother resides at the in-district address.
According to respondent, during the 2017-2018 and 2018-2019 school years, two sources of information suggested that the student may not reside at the in-district address. First, the student was frequently tardy during the 2017-2018 (46 occasions) and 2018-2019 (12 occasions in September and October 2018 alone) school years. Second, respondent’s assistant superintendent for district operations (“assistant superintendent”) received “multiple reports” from district employees that “the student admitted openly to both his classmates and his teachers” that he lived with his mother at a location outside of respondent’s district. Based on this information, respondent conducted an investigation into the student’s residency.
As part of this investigation, an investigator conducted surveillance of the in-district address and the student’s mother’s residence (the “out-of-district address”). On six of the eight weekdays of surveillance (October 19, 22, 24, 25, 26 and 29, 2018), the student and his mother were seen exiting the out-of-district address, entering the mother’s car, and driving to school, where the student was dropped off and entered the school building.
As part of his investigation, the investigator met with the student’s teacher on October 23, 2018. The teacher reported that, according to “unsolicited statements from the student,” she had learned that petitioner resided “down south,” and that petitioner “only visit[ed] [New York] State a few times per year to see his family in the District.” During such visits, the teacher indicated, the student stayed with petitioner at the in-district address.
In a letter to the student’s mother dated October 29, 2018, respondent’s assistant superintendent informed her of the district’s determination that the student resided outside of the district. The letter invited the student’s mother to contact the assistant superintendent if she disputed the district’s information; if not, the student would be excluded from respondent’s district on November 4, 2018. Petitioner subsequently contacted the assistant superintendent to request a residency meeting.
On October 30, 2018, petitioner, the student’s mother, the district registrar and the assistant superintendent met to discuss the student’s residency. According to the assistant superintendent, petitioner asserted at the meeting that the student resided with him at the in-district address. Further, according to the assistant superintendent, petitioner stated that the student’s mother “arrives at the District address on school mornings to stay with the student.” This assertion, as the assistant superintendent notes in an affidavit, is inconsistent with the surveillance evidence.
In a letter dated October 30, 2018, petitioner appealed the assistant superintendent’s denial of residency to respondent and “dispute[d] the District’s findings” concerning the student’s residency. Petitioner asserted that the student rode the bus home every day and rode the bus “to school MOST mornings ....” Petitioner also indicated that, when the student is unable to take the bus in the morning, the student’s “[g]randmother takes him to the bus stop when she is able to do so, or his mother picks him up from [the in-district address] to drop him off at school.”
By letter dated November 14, 2018, respondent’s president affirmed the assistant superintendent’s determination of nonresidency and indicated that the student would be excluded from respondent’s schools effective November 16, 2018. This appeal ensued. Petitioner’s request for interim relief was denied on December 17, 2018.
Subsequent to the initiation of this appeal, respondent conducted additional surveillance at the out-of-district address in the early mornings of January 29, 30 and 31, 2019, and at the in-district address in the early morning of February 5, 2019. The student was not observed leaving the out-of-district address for school on any of the three consecutive dates in January 2019, even though the student’s mother’s automobile was observed at the out-of-district residence on each of the three dates and the student’s mother was observed leaving her residence on one of them.
In the petition, petitioner contends that he, the student, the student’s brother, and the student’s grandmother reside at the in-district address. Petitioner also argues, for the first time on appeal, that the student visits his mother “1-3 nights per week ... during his football season from September 2018 – November 9, 2018 ....” Petitioner further asserts that, following the student’s exclusion from school in November 2018, he obtained a court order which provides him with “guardianship” of the student. Petitioner requests a determination that the student is a resident of respondent’s district.
Respondent contends that its determination was neither arbitrary nor capricious. With respect to petitioner’s order of guardianship, respondent asserts that this document does not affect its determination below that the student does not physically reside with petitioner at the in-district address.
First, I must address several preliminary issues. Petitioner submitted a document captioned “response to verified answer and opposition to petitioner’s stay application and new material asserted by the district/respondent” (the “reply”). 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.
Petitioner also submits a final order of custody and visitation concerning the student dated January 3, 2019. This court order was not final at the time petitioner commenced the instant appeal and is relevant to the claims presented herein; accordingly, I have accepted it in my discretion (8 NYCRR §276.5).
Respondent submitted a “sur-reply affirmation” prior to submission of its answer indicating that it had acquired new information concerning petitioner’s ownership of property located outside of respondent’s district and requesting that I accept such information into the record. However, respondent also submitted this information together with its answer, which was timely submitted. Accordingly, it is unnecessary to independently accept respondent’s sur-reply affirmation into the record.
Respondent also submitted a “second sur-reply affirmation” in which respondent objects to consideration of petitioner’s reply submission and the January 3, 2019 court order; in the alternative, respondent requests that I accept its second sur-reply affirmation so that it may respond to these submissions. As indicated above, I have not accepted those portions of petitioner’s reply which exceed the permissible scope of a reply and have accepted the January 3, 2019 court order. Therefore, I will accept respondent’s second sur-reply affirmation to the extent it responds to the permissible portions of the reply and the January 3, 2019 court order.
Petitioner further submits additional information with a cover letter dated February 11, 2019 and requests that I accept such evidence into the record pursuant to 8 NYCRR §276.5. I have accepted portions of this submission which pertain to petitioner’s subsequent attempts to register the student in respondent’s district after commencement of the instant appeal; specifically, two letters exchanged between petitioner and the assistant superintendent, both of which are dated January 30, 2019. I have not, however, accepted those portions of the submission which attempt to bolster petitioner’s claim of residency; namely, multiple affidavits which attest to petitioner’s residency within the district.
Finally, petitioner argues that respondent failed to provide him with notice of the basis of its determination, as required by 8 NYCRR §100.2(y). Section 100.2(y) provides that the written notice provided to parents must state, among other things, “the specific basis for the determination that the child is not a resident of the school district, including but not limited to a description of the documentary or other evidence upon which such determination is based” (8 NYCRR §100.2[y][ii]). Here, respondent’s November 14, 2018 letter did not set forth the basis for its determination of nonresidency, as required by 8 NYCRR §100.2(y) (see Appeal of Rivera, 57 Ed Dept Rep, Decision No. 17,221; Appeal of Leslie, 38 id. 194, Decision No. 14,013; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Accordingly, I admonish respondent to fully comply with the procedures established in 8 NYCRR §100.2(y) in the future. However, because the matter is now before me and petitioner has had ample opportunity to present evidence in support of his claim, I will address the merits (see e.g. Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673; Appeal of Butler and Durham, 50 id., Decision No. 16,103).
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).
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).
On this record, I find that petitioner has not met his burden of proving that the student resides at the in-district address. Initially, I must address the effect, if any, of the January 3, 2019 order of custody and visitation concerning the student’s residency. The order provides petitioner and the student’s mother with “joint legal custody” of the student. 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).
Here, petitioner has not submitted proof that the student is essentially dividing his time between his mother and petitioner’s residences; indeed, the evidence shows that the student spends the majority of his time at the out-of-district address with his mother. Therefore, the student is not essentially dividing his time between his parents’ residences and petitioner and the student’s mother are not entitled to designate respondent’s district as the student’s district of residence (see e.g. Appeal of Franklin-Boyd and Graham, 45 Ed Dept Rep 33, Decision No. 15,251). Consequently, the student’s residency must be determined by the traditional test of physical presence in the district and intent to remain therein.
The custody agreement also provides petitioner with “residential custody” of the student. However, as indicated above, on six of the eight dates of initial surveillance, an investigator observed the student and his mother exit the out-of-district address, enter the mother’s vehicle, and drive to the student’s school, whereupon the student entered the school building. This evidence demonstrates that, the language of the court order notwithstanding, during this period of surveillance the student was never observed at the in-district address but was observed on six of the eight surveillance dates with his mother at the out-of-district address. Therefore, in the face of contrary surveillance evidence, the court order granting petitioner “residential custody” is not dispositive; petitioner remains obligated to demonstrate that the student, in fact, resides within respondent’s district (see Appeal of Reid, 45 Ed Dept Rep 100, Decision No. 15,270).
Petitioner submits the following evidence bearing the in-district address in support of his claim of residency within respondent’s district: (1) a copy of his driver’s license; (2) vehicle registration information; (3) vehicle insurance information; and (4) a “landlord-tenant verification” signed by the student’s grandmother, who
resides at the in-district address. While this documentary evidence bearing petitioner’s name and the in-district address is entitled to some weight, it is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that the in-district residence appears to belong to the student’s grandmother (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).
Petitioner also submits an undated written statement from the student’s mother in which she asserts that the student “no longer resides” at the out-of-district address. The student’s mother further states that the student “hasn’t lived with [her] since June 3rd of 2017” and “now resides” at the in-district address. This letter is entitled to relatively little weight, as it is undated, unsworn and is inconsistent with the surveillance evidence submitted by respondent.
Although respondent primarily relies upon its surveillance evidence, it also asserts in its answer that it has confirmed that petitioner resides at a North Carolina address and that the student allegedly admitted to his teacher that he lives with his mother. Respondent submits evidence purporting to establish that petitioner actually resides in North Carolina, including a statement made to respondent’s investigator by the student’s teacher to the effect that petitioner resides “down south and comes up to visit from time to time” and the results of an on-line property records search that showed that an individual named Stevie Leach owns property in North Carolina with a North Carolina mailing address. However, petitioner asserts that his father, also named Stevie Leach, owns and resides at the North Carolina address, and as proof submits a copy of his father’s current North Carolina driver’s license. Petitioner’s New York driver’s license, a copy of which is part of the record, portrays a different individual and bears the in-district address. On this record, I find that respondent has failed to provide sufficient evidence that petitioner actually resides in North Carolina.
Respondent also asserts that on October 31, 2018, the student admitted that he needed to call his mother because he had left a part of his Halloween costume at home. In his reply, petitioner admits that his son left his Halloween costume at home, but asserts that he, petitioner, was contacted by the school office to ask if he could bring it to school. This is denied by respondent, but respondent submits no proof to rebut petitioner’s allegation that he was contacted by the school office. In any case, the student’s “admission” that he left part of his costume at home is ambiguous and I do not find it persuasive evidence that the student resides with his mother.
In response to respondent’s initial surveillance evidence, petitioner asserted, at the residency meeting and in the appeal letter dated October 30, 2018, that the student “rides the bus to school” on most mornings, and that, on those days when he does not, his grandmother “takes him to the bus stop ... or his mother picks him up from [the in-district address] to drop him off at school.” These assertions directly contradict respondent’s initial surveillance evidence, which repeatedly portrayed the student and his mother departing the out-of-district address in the morning and arriving at the student’s school. The assistant superintendent explains that she did not find petitioner to be credible given such inconsistencies. I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of Lee D., 38 id. 262, Decision No. 14,029).
Petitioner now claims on appeal that the student “visits his mother” at the out-of-district address “1-3 nights per week,” though petitioner did not make this assertion in his October 30, 2018 appeal letter and there is no evidence that he made such assertion during the October 30, 2018 residency meeting. In fact, petitioner’s claim on appeal contradicts his assertion in the October 30, 2018 appeal letter that the student leaves for school from the in-district address every day, whether he is transported by school bus, by petitioner, by the student’s grandmother or by the student’s mother.
Additionally, in his reply, petitioner argues that he was “out of town” during the period of respondent’s surveillance, and that respondent “initiated the surveillance investigation during this time period ... knowing Petitioner would not be present during [the] entire surveillance period.” As proof, petitioner submits an E-Z Pass statement reflecting tolls incurred on various dates between October 1 and October 24, 2018 as well as a car rental agreement indicating that he would pick up a rental car in Charleston, South Carolina on October 15, 2018 and return said rental car in South Carolina on November 15, 2018. Even assuming, arguendo, that petitioner was out of town in October 2018, petitioner indicates in his reply that he returned home on October 22, 2018, and of the five days of surveillance conducted after that date, the student left for school from the out-of-district address with his mother on four such occasions. Moreover, although petitioner submits photographic proof that he was present with the student on October 23, 2018 in the morning near a bus stop, this is consistent with respondent’s surveillance evidence, which did not portray the student at the out-of-district address on the morning of October 23, 2018. Therefore, I find that petitioner’s belated explanations further support respondent’s credibility determination and decline to disturb such determination on appeal.
Had the surveillance evidence been limited to the surveillance conducted in October 2018 described above, the appeal would be dismissed based on petitioner’s failure to meet his burden of proving that he resides at the in-district address. However, with its second sur-reply affirmation, respondent submitted additional surveillance evidence that does not support, and appears to directly contradict, the October 2018 surveillance evidence. As indicated above, respondent conducted additional surveillance at the out-of-district address in the early mornings of January 29, 30 and 31, 2019, and at the in-district address in the early morning of February 5, 2019. The student was not observed leaving the out-of-district address for school on any of the three consecutive dates in January 2019, even though the student’s mother’s automobile was observed at the out-of-district residence on each of the three dates and the student’s mother was observed leaving her residence on one of them. Additionally, while respondent indicated that the student was not observed leaving the in-district address on February 5, 2019, it ambiguously notes that a “young student” was observed exiting the in-district address and boarding a school bus.
The additional surveillance evidence indicates that, on three consecutive dates in January 2019, the student was not physically present at the out-of-district address. Respondent has provided no explanation for those observations, which contradict respondent’s assertion that the student’s actual and only residence is with his mother at the out-of-district address.
Thus, while the October 2018 surveillance evidence portrayed the student at the out-of-district address on four occasions for which petitioner has failed to provide an adequate explanation, subsequent surveillance over two months later did not reveal the student at the out-of-district address on three consecutive days. Under these circumstances, a remand to respondent is appropriate to consider respondent’s January and February 2019 surveillance evidence, which it did not have when it determined that the student was not a district resident. On remand, respondent must offer petitioner a full and fair opportunity to provide any explanation he may have concerning such surveillance evidence (see 8 NYCRR §100.2[y][ii]).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED AND REMANDED.
IT IS ORDERED that, within 30 days of the date of this decision and order, respondent make a determination in accordance with this decision and 8 NYCRR §100.2(y) as to whether the student is entitled to attend the schools of the district, and that prior to making such determination, petitioner shall be afforded a full opportunity to submit any and all information concerning the student’s residency.
END OF FILE
 Respondent also conducted surveillance at the out-of-district address on Saturday, October 20 and Sunday, October 21, 2018. While the investigator did not observe the student’s mother or the student, the student’s mother’s car was observed parked at a parking lot associated with the out-of-district address.
 With his reply, petitioner for the first time submits sworn affidavits from the mother of his other son, his brother and another relative (stepmother) attesting that the “known physical address” of petitioner and the student is the in-district residence. Petitioner also submits an affidavit in which he attests that the student visits his mother two to three times a week “unless [he] leave[s] to go out of town or any other emergency situations.” As indicated above, these affidavits were not properly submitted with the reply and have not been considered, since they attempt to buttress allegations made in the petition and are not responsive to new material or affirmative defenses raised in the answer.
 Moreover, the landlord-tenant verification was executed on November 28, 2018, two weeks after respondent issued its final determination that the student did not reside within its district (see Appeal of Thompson, 57 Ed Dept Rep, Decision No. 17,173).
 While such a belated assertion would ordinarily not be allowed in a reply, as indicated above, respondent did not disclose the basis for its nonresidency determination in its November 14, 2018 exclusion letter. Thus, it appears that petitioner first learned of the district’s surveillance evidence upon receipt of the district’s answer. Under these circumstances, particularly in light of respondent’s noncompliance with 8 NYCRR §100.2(y) described above, I will consider petitioner’s response to respondent’s surveillance evidence in the reply.
 On two of the dates of the initial surveillance – October 19 and October 22, 2018 – petitioner has sufficiently demonstrated that he was out of town, at least during the morning. Petitioner’s E-Z Pass statement shows petitioner paying tolls in Baltimore, Delaware and New Jersey on October 22, 2018. Though it is not clear whether the stated times are a.m. or p.m., the statement shows petitioner paying a toll at the Goethals bridge at 9:47, which even if it was in the morning, would be after the student was observed leaving for school.