Decision No. 17,717
Appeal of KAREN JIANG, on behalf of her children BOWIE and KAYLYN WENG, from action of the Board of Education of the Williamsville Central School District regarding residency.
Decision No. 17,717
(July 31, 2019)
Tehsheng Ma, Esq., attorney for petitioner
Harris Beach, PLLC, attorneys for respondent, Tracie L. Lopardi and James E. Beyer, Esqs., of counsel
ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her daughters, Bowie and Kaylyn Weng (“the students”), are not district residents. The appeal must be dismissed.
Petitioner initially enrolled the students in respondent’s district in September 2018. At that time, petitioner provided copies of a deed and homeowner’s insurance for a condominium which she had purchased on September 4, 2018 (“the in-district address”) as proof of residency. On or about October 19, 2018, respondent began to question the students’ residency at the in-district address when petitioner’s elder daughter, then in fourth grade, identified a house located on a particular street in Buffalo, New York (“the out-of-district address”) as her home. An address on this same street in Buffalo, New York was listed as petitioner’s residence on the deed for the in-district address. According to the respondent’s coordinator of student services (“coordinator”), petitioner’s older daughter went on to explain to her teacher that she and her younger sister were picked up every morning from the out-of-district address and dropped off at school. The student also provided the teacher with the license plate of the car used to drive them, which was a custom plate incorporating her name.
Thereafter, respondent retained an investigator who conducted surveillance of the out-of-district address on three consecutive mornings, beginning on October 24, 2018. The investigator observed the students exiting the out-of-district address on each of the three mornings, whereupon they were driven to school.
By letter dated October 26, 2018, the coordinator notified petitioner that a question had been raised about whether the students were district residents and asked petitioner to submit information in support of her residency by November 8, 2018. Petitioner submitted two utility bills for the in-district address that, according to the coordinator, reflected usage inconsistent with the usage expected of a family of three(i.e., charges of $5.83 for electricity and $33.08 for gas for September 2018). Respondent conducted additional surveillance of the out-of-district address on the mornings of November 6 and 14, 2018. On both occasions, the students were observed leaving the out-of-district address, at which point they were driven to the school.
By letter dated November 14, 2018, the coordinator notified petitioner of respondent’s determination that the students did not reside within the district and stated that the students would be excluded from the district effective November 26, 2018. This appeal ensued. Petitioner’s request for interim relief was denied on December 21, 2018.
Petitioner argues that she and the children live at the in-district address, which she purchased in September 2018. Petitioner asserts that she took her daughters to stay overnight with her mother at the out-of-district address “as a temporary arrangement” in the fall of 2018 while renovation was underway at the in-district address. Petitioner further submits that she and her daughters moved into the in-district address on November 1 or 2, 2018, once renovations were complete. Petitioner seeks a determination that her children are residents of respondent’s district entitled to attend respondent’s schools without the payment of tuition.
Respondent contends that, as demonstrated by its surveillance evidence, petitioner and the students physically reside at the out-of-district address. Respondent further argues that it determined that petitioner was not credible and that such determination is supported by the evidence in the record.
First, I must address the procedural issues. Respondent contends that petitioner has improperly included in her reply allegations and exhibits that should have been part of the petition. 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, such as the affidavit of petitioner’s mother, that are not responsive to new material or affirmative defenses set forth in the answer.
Petitioner argues that respondent failed to provide her with a sufficient opportunity to address the school district’s residency concerns before it made its determination. Specifically, petitioner contends that when she went to the district’s office to speak with the coordinator on November 1, 2018 after receiving the district’s October 26, 2018 letter, she was told that the coordinator was unable to speak with her that day and was directed to drop off the material.
Commissioner’s regulation §100.2(y)(6) provides that:
Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent ... the opportunity to submit information concerning the child’s right to attend school in the district.
Here, the record reflects that petitioner was afforded an opportunity to submit information to respondent prior to its residency determination in accordance with 8 NYCRR §100.2(y). Although petitioner faults respondent for not affording her “an opportunity to either speak to Respondent at the District office, or ... to schedule a meeting, or ... to participate in an evidentiary hearing,” 8 NYCRR §100.2(y) does not impose any such requirement on respondent and requires only that parents be afforded an opportunity to submit information. Petitioner was afforded this opportunity when she submitted the documents that she brought with her on November 1, 2018. The record further reflects that respondent considered these documents in reaching its final determination.
Moreover, petitioner has not established that respondent or its employees were unwilling to meet with her; she merely alleges that they failed to affirmatively offer or request such a meeting. Relatedly, petitioner has not explained how or why it was unforeseeable or unreasonable that the coordinator was unavailable when she visited the district offices unannounced. Therefore, on this record I find that respondent offered petitioner an opportunity to submit information prior to its final determination in conformity with 8 NYCRR §100.2(y).
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).
Petitioner has not met her burden of proving that she and the students reside within respondent’s district. As proof, petitioner submits a copy of her driver’s license, documents reflecting ownership of the in-district address, and utility bills bearing her name and the in-district address. While this documentary evidence is entitled to some weight, it is not dispositive where contrary surveillance evidence exists that is not otherwise refuted or explained or where the address is that of a relative (see e.g. Appeal of Leach, 58 Ed Dept Rep, Decision No. 17,653; Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644). Additionally, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863).
By contrast, although respondent’s surveillance evidence is not over-whelming, respondent has, through surveillance evidence and credibility determinations, explained its reasoning such that I cannot find its determination to be arbitrary or capricious. Initially, respondent’s surveillance evidence indicates that the students were present at the out-of-district address during October 2018. Petitioner does not contest this evidence on appeal, admitting that the students, in fact, did not reside at the in-district address until November 1 or 2, 2018, when renovations to the in-district address were complete.
However, even accepting this explanation, respondent has adduced evidence which contradicts petitioner’s explanation and raises a question as to her credibility. As explained above, respondent conducted additional surveillance of the out-of-district address on November 6 and 14, 2018, during which the students were observed leaving the out-of-district address in the morning, after which they were driven to school. After issuance of the November 14, 2018 exclusion letter, petitioner met with the coordinator on November 20, 2018. During this meeting, petitioner asserted that she was a student and that she “needed some assistance from her family when she ha[d] early morning classes.”
Respondent contends that, on November 21, 2018, an attorney representing petitioner submitted a document via facsimile to the coordinator in which he asserted, among other things: that petitioner and the students moved into the in-district address in mid-October; that petitioner “drives her children” to the out-of-district address on Monday and Wednesday mornings because she has classes early in the morning on those days; and that, on Mondays and Wednesdays, petitioner’s brother drives the students to school from the out-of-district address.
The coordinator explains that she did not find the attorney’s submission persuasive for three reasons: (1) the attorney’s representation that petitioner moved to the in-district address in “mid-October” was contradicted by the surveillance evidence; (2) on two occasions, the surveillance evidence did not depict petitioner’s vehicle arriving at the out-of-district address at approximately 7:30 a.m.; and (3) on October 25 and 26, 2018 as well as November 6, 2018, the surveillance evidence depicted the students leaving the out-of-district address, even though these were not days on which petitioner alleged that she had early morning classes. The coordinator explains that, based upon all the above evidence, including petitioner’s shifting and inconsistent explanations, she did not find petitioner to be credible.
In her reply, petitioner attempts to explain the November 6 and 14, 2018 surveillance evidence. First, petitioner asserts that she “stayed overnight with her mother” on November 6, 2018 due to vertigo, which was diagnosed following “treatment at the emergency [room]” on October 15, 2018, and attaches medical documentation to support this claim. Petitioner also asserts that the students were observed at the out-of-district address on November 14, 2018 because it was a Wednesday, a day when she brings the students to the out-of-district address to accommodate her attendance at morning classes. However, other than her allegations, petitioner has produced no proof that she is currently enrolled as a student or otherwise attending classes, such as a printout of her course schedule. Further, while respondent's surveillance evidence is not overwhelming, neither petitioner nor her daughters were ever observed leaving for school from, or returning from school to, the in-district address, nor has petitioner carried her burden of proving that she physically resides in the district (see Appeal of Fisher, 57 Ed Dept Rep, Decision No. 17,349; Appeal of a Student Suspected of Having a Disability, 51 id., Decision No. 16,292). Therefore, even accepting, petitioner’s explanation for the November 6, 2018 surveillance, on this record, she has failed to meet her burden of demonstrating that respondent’s determination was unreasonable.
Finally, to the extent petitioner argues that she is a district resident who is temporarily absent from the district and should be permitted to maintain her residency status during such absence, this doctrine does not apply under the facts of this case as there is no indication on the record before me that petitioner initially established residency in respondent’s district (see e.g. Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of Zhang and Xue, 54 id., Decision No. 16,733; Appeal of Lin, 48 id. 166, Decision No. 15,827).
I have considered petitioner’s remaining arguments and find them to be without merit.
Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 I further note that, while it occurred after respondent issued its final determination, the record reflects that petitioner met with the coordinator on November 20, 2018.
 Although petitioner disputes some aspects of this meeting, she does not dispute that she met with the coordinator or the representations she made concerning her class schedule.
 This attorney is not the attorney who represents petitioner in the instant appeal.
 Respondent has not included this document in the record.
 Respondent’s credibility determination is further supported by the statements made by petitioner’s older child to her teacher described above concerning her residency at the out-of-district address. Such statements are hearsay, but hearsay is admissible in an administrative proceeding such as an appeal pursuant to Education Law §310 (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of Watson, Wyche and Brazley, 56 Ed Dept Rep, Decision No. 17,082; Appeal of Galperin, 51 id., Decision No. 16,297, judgment granted dismissing petition, Sup. Ct., Albany Co., August 10, 2012).
 The record indicates that respondent conducted surveillance on two additional dates in late November (November 29 and 30) after it had already excluded the students. While the students were not observed at either address during the times students would typically be expected to exit for, or return from, school, it should be noted that the students had been excluded from respondent’s schools earlier that week. Thus, this surveillance evidence was inconclusive and, moreover, had not been considered by respondent in its November 14, 2018 residency determination.