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Decision No. 17,729

Appeal of P.L. and J.L., on behalf of their son E.L., from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 17,729

(August 14, 2019)

Jaspan, Schlesinger, LLP, attorneys for respondent, Edward H. Grimmett Esq., of counsel

ELIA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that their son, E.L. (“the student”), is not a district resident.  The appeal must be dismissed.

On September 25, 2016, petitioners completed application materials to register the student in respondent’s schools.  In these materials, petitioners stated that they resided at an address within respondent’s district (the “in-district address”).  Based upon these representations, the student was permitted to attend respondent’s schools for the 2017-2018 school year as a district resident.

In or about May 2017, the district received information from an anonymous source that the student did not reside at the in-district address.  Thereafter, the district commenced an investigation, in which Accurint Lexis-Nexis data search confirmed that they did not reside at the in-district residence.

By letter dated October 9, 2018, respondent’s director of business services (“director”) notified petitioners of her determination that the student was not a district resident and, therefore, was ineligible to attend its schools without payment of tuition.  The director further informed petitioners that the student’s final day of enrollment would be October 15, 2018.[1]  The director also informed petitioners that she had determined that the student was not a district resident during any portion of the 2017-2018 school year and that petitioners would be responsible for the payment of non-resident tuition for that school year.  This appeal ensued.

Petitioners contend that they resided within respondent’s district during the 2017-2018 school year and seek a determination that they are not required to pay tuition for educational services rendered to the student during that school year.

Respondent argues that the petition must be dismissed because it is not verified in accordance with Commissioner’s regulations.  Respondent further contends that the appeal must be dismissed as untimely, for lack of jurisdiction, and, in part, as moot.

The appeal must be dismissed for lack of proper verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  A petition “shall be verified by the oath of at least one of the petitioners” (8 NYCRR §275.6; (Appeal of Booker, 40 Ed Dep Rep 447, Decision No. 14,523).[2]  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).

Petitioners’ purported verification, captioned “NEW YORK ALL PURPOSE ACKNOWLEDGEMENT, REAL PROPERTY LAW §309-a” (“acknowledgement”) does not comply with §275.6 of the Commissioner’s regulations because the acknowledgment does not contain an attestation to the truth of the allegations in the petition.  Moreover, neither petitioner signed the acknowledgment.  Although the acknowledgment contains the signature of a notary public, merely notarizing a document does not constitute verification of a pleading (see e.g. Appeal of Phillips, 40 Ed Dept Rep 241, Decision No. 14,471; Appeal of Shabazz, 38 id. 481, Decision No. 14,076).  Therefore, the appeal must be dismissed for improper verification.

Moreover, to the extent petitioners dispute respondent’s residency determination, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In the petition, petitioners request a determination that the student was a district resident during the 2017-2018 school year.  Since the 2017-2018 school year has ended, and petitioner admits that as of May 10, 2018, he moved outside the district, the appeal is moot.

Finally, to the extent petitioners seek relief from respondent’s demand for tuition reimbursement for the 2017-2018 school year, the Commissioner has historically declined to award tuition in residency appeals (Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of M.S. and M.R.F., 57 id., Decision No. 17,347).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] In this letter, the director further noted that the student had not been in attendance in respondent’s schools since the start of the 2018-2019 school year.

 

[2] Although not applicable here, where an appeal is brought “by the trustee or the board of trustees or board of education of a school district, it shall be verified by any person who is familiar with the facts underlying the appeal, pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board” (8 NYCRR §275.6).