Decision No. 17,797
* Subsequent History: Matter of Dukes v Cold Springs Harbor Cent. School Dist. Bd. Of Educ.; Supreme Court, Albany County (Walsh, J.); Decision/Order/Judgment dismissed petition to review. *
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. 17,797
(November 26, 2019)
Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel
TAHOE., Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Cold Spring Harbor Central School District (“respondent”) that their 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.
This is the fourth appeal commenced by petitioners concerning their alleged homeless status (Appeal of G.D. and D.D., 58 Ed Dept Rep, Decision No. 17,541, Dukes v Elia, et al.; Supreme Court, Albany County; Koweek, J; Judgment dismissing petition to review; June 26, 2019; Appeal of D.D. and G.D., 57 id., 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 for the 2017-2018 school year, 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 again for the 2018-2019 school year. Petitioners indicated that they resided at a different apartment located within the same apartment complex (the “second Melville apartment”). 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). Petitioners thereafter commenced the third appeal (Appeal of D.D. and G.D., 58 Ed Dept Rep, Decision No. 17,541). After granting petitioners’ request for interim relief allowing the students to attend respondent’s schools during the pendency of that appeal (see 8 NYCRR §276.1[a]), the Commissioner dismissed the appeal in a decision dated November 26, 2018, finding that petitioners failed to meet their burden of proving that the students lacked a fixed, regular and adequate nighttime residence at the second Melville apartment.
Petitioners appealed this decision pursuant to Article 78 of the Civil Practice Law and Rules. The Albany County Supreme Court granted an automatic stay of proceedings pursuant to McKinney-Vento permitting the students to remain enrolled in respondent’s district during the pendency of judicial proceedings. In a Decision, Order and Judgment dated June 26, 2019, Albany County Supreme Court upheld the November 26, 2018 determination, finding that the Commissioner “rationally determined that petitioners’ residence is neither transitional, nor temporary in nature,” and that the Commissioner’s dismissal of the appeal on the ground “that petitioners failed to establish that they lack a fixed, regular and adequate nighttime residence within the meaning Education Law §3209(1)(a)(1) [was] not arbitrary, capricious or affected by an error of law.” Petitioners did not appeal the court’s determination.
In August 2019, petitioner D.D. again sought to enroll the students in respondent’s district for the 2019-2020 school year as homeless students. Petitioner D.D. met with the assistant superintendent and the district’s homeless liaison. At this meeting, petitioner D.D. alleged that petitioners and the students had moved out of the second Melville apartment on or about April 1, 2019. According to respondent, petitioner D.D. further indicated that she and the students resided with their “adult daughter” whose residence is “close to where [petitioners] previously lived.” Petitioner D.D. would not provide the adult daughter’s name, address, or other identifying information.
In a letter dated September 2, 2019, respondent’s superintendent found that the students were not homeless within the meaning of McKinney-Vento or State law. The superintendent found that the following information supported his determination:
- Petitioner D.D. indicated that she moved out of the second Melville apartment “around April,” although the district “provided daily transportation” for the students to and from this address “through the end of June”;
- Petitioners indicated that they resided with their adult daughter in a “2½ bedroom home with a living room, dining room and kitchen ... but acknowledged that the home is suitable [and] livable ....”
- Although petitioners indicated that they stayed at a hotel for 12 days in April, unspecified dates in May, 4 days in July, and 2 days in August to “reduce family discord,” petitioners produced no proof that they had stayed in the hotel (such as receipts);
- Petitioners did not offer their adult daughter’s address.
Thus, “[g]iven the aforementioned evidence, judgment on credibility, and [petitioners’] complete refusal to provide specifics about where [they were] living,” the superintendent found that the students were not homeless. This appeal ensued.
Petitioners claim that they were “evicted in May 2019” from the second in-district address and “have depended on local ... family members to provide shelter.” Petitioners state that the “family members [with whom they] have stayed since being evicted in May 2019 are not unwilling [sic] to consider us a ‘share’ in their home.” Petitioners further assert that their family “has a combination of possible places to stay during transition and [while they are] awaiting permanent housing. We often will stay doubled up with family members or [utilize] hotel space.” Petitioners seek a determination that the students are homeless within the meaning of McKinney-Vento.
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 petitioners’ circumstances have not changed since issuance of the Commissioner’s decision in the third administrative appeal and, consequently, petitioners are not entitled to enroll the students in respondent’s district (see Appeal of D.D. and G.D., 58 Ed Dept Rep, Decision No. 17,541, Dukes v Elia, et al.; Supreme Court, Albany County; Koweek, J; Judgment dismissing petition to review; June 26, 2019 [hereinafter the “third administrative appeal”]). Respondent specifically asserts that, given prior decisions of the Commissioner concerning petitioners’ homeless status, there is no set of facts under which respondent’s district 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. Respondent additionally indicates that, as reflected in the superintendent’s decision, it found that petitioners were not credible and that such credibility findings are binding in this appeal. Respondent also requests that I designate, or direct petitioners to designate, the school district which encompasses the Melville apartments as the students’ school district of origin, attendance and/or residence. 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 the procedural issues. Respondent asserts that it was not served with a copy of petitioners’ reply. My Office of Counsel issued an expedited scheduling order in this matter that explicitly directed petitioners to, in accordance with 8 NYCRR §275.8(e), serve the verified reply and memorandum of law “by delivering a copy of the pleadings and supporting papers to the school district’s local educational agency liaison for homeless children and youth, whom petitioner ... designated to hold and receive correspondence regarding this appeal ....” It appears, based on the record, that petitioners did not serve a copy of the reply on the homeless liaison in accordance with these instructions. Accordingly, I have not considered petitioners’ reply in reaching my determination.
Second, respondent argues, as it did in the third administrative appeal, that this appeal must be dismissed based upon the preclusive effect of the third administrative appeal, which was upheld by Supreme Court. As in the previous appeal, I decline to do so. The tension in these appeals arises in part from the fact that an appeal to the Commissioner is appellate in nature. Appellate review is based upon an evaluation of a determination made by a district at a particular time based upon particular facts. Statuses such as residency and homelessness, however, may be fluid in nature; one may become homeless or a district resident following a district’s determination to the contrary. The Commissioner has reconciled this tension by noting, upon denial of a residency or homelessness appeal, that an individual retains the right to reapply to the district if his or her circumstances have changed (see e.g. Appeal of Kilpatrick, 59 Ed Dept Rep, Decision No. 17,750; Appeal of M.S. and C.C., 59 id., Decision No. 17,749; Appeal of S.D., 59 id., 17,743). This recognizes that it would be inequitable to bind a petitioner to a residency or homeless determination if new events subsequent to the appeal give rise to a plausible claim that circumstances have, in fact, changed.
Here, petitioners claim in the petition that they (1) were evicted from the second Melville apartment subsequent to the third administrative appeal; (2) they reside at an undisclosed location (which respondent asserts is an apartment in the Melville apartment complex where petitioners reside with their adult daughter) and at other unspecified locations. While I agree with respondent that the third administrative appeal is binding upon petitioners based upon the facts adduced in that appeal and absent a change in circumstance, here petitioners claim to live at a different location. 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.
Nevertheless, on the record before me, I agree with respondent that petitioners’ allegations are wholly inadequate to support a finding of homelessness. Education Law §3209(1)(a) defines “homeless child” as:
- a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
- sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
- living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
- abandoned in hospitals; or
- 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;
- an unaccompanied youth ...; or
- a child or youth who has a primary nighttime location that is:
- a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
- a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings....
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).
While petitioners claim that “[t]he family has a combination of possible places to stay during transition and awaiting ... permanent housing” and that they “often will stay doubled up with family members or hotel space,” they do not identify the individuals with whom they stay or the addresses where they allegedly reside. Petitioners also fail to identify the specific location where they currently reside or explain how this residence is inadequate or transitional. I further note that petitioners submit no evidence (e.g., photographs) of their living space to support a claim that their housing is inadequate or transitional. The only evidence petitioners have submitted is a “72 hour eviction notice” that contains a handwritten notation indicating that it was issued to the second Melville apartment and an envelope addressed to “John Doe” at the second Melville apartment. This information does not demonstrate that petitioners were evicted and sheds no light on the adequacy of the students’ current living circumstances. Without such information, I cannot determine that the students lack a fixed, regular and adequate nighttime residence (see Appeal of K.L., 59 Ed Dept Rep, Decision No. 17,730; Appeal of T.C., 56 id., Decision No. 17,116; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of a Student with a Disability, 52 id., Decision No. 16,404). Additionally, while the record reflects that petitioners informed respondent that they and the students resided at hotels on multiple days in 2019, petitioners have not proven on this record that they were forced to do so due to a loss of housing or similar reason, rather than a personal preference (Appeal of J.B., 50 Ed Dept Rep, Decision No. 16,221; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108).
In any event, I note that the only evidence in the record concerning the students’ current residence suggests that it is fixed, regular and adequate. Although petitioners submit no evidence on appeal, respondent’s assistant superintendent indicates in an affidavit that petitioner D.D. described the attributes of petitioners’ current residence to her on or about August 28, 2019. Petitioners did not address or refute this evidence on appeal. According to the assistant superintendent, petitioner D.D. indicated that petitioners and the students are currently living with petitioners’ adult daughter in a “2½ bedroom home with a living room, dining room and kitchen.” She further states that petitioners themselves acknowledged that the home is “suitable [and] livable ....”
Respondent also conducted surveillance of petitioners and the students between October 3 and November 1, 2019. On at least 11 days, the investigator observed one or both of the students leaving from, or returning to, an apartment located within the same Melville apartment complex as petitioners’ prior two apartments. The investigator also observed an adult female who appeared to live in a nearby apartment unit; the investigator noted that it appeared that petitioners’ adult daughter lived in the nearby apartment. On seven days of surveillance, the investigator followed a vehicle registered to petitioners after it left the Melville apartment complex and observed the students being dropped off directly at respondent’s Junior/Senior High School. Additionally, on four days of surveillance, the investigator observed petitioners’ vehicle leaving the Junior/Senior High School and arriving at the Melville apartment complex, where the students subsequently entered an apartment. Such evidence is consistent with the statements made by petitioner D.D. at her meeting with the district that the family resided “close to where [petitioners] previously lived” with or near the adult daughter’s apartment in the same complex where petitioners have lived since 2016. Therefore, on this record, petitioners have failed to meet their burden of proving that the students lack a fixed, regular and adequate nighttime residence (Appeal of T.C., 56 Ed Dept Rep, Decision No. 17,116; Appeals of S.R., 56 id., Decision No. 16,987; Appeal of a Student with a Disability, 52 id., Decision No. 16,404).
A final note is in order. Respondent devotes substantial space in its papers to petitioners’ alleged abuse of McKinney-Vento and its automatic stay provisions. Respondent correctly notes that this is petitioners’ fourth appeal concerning their alleged homelessness, and that the first three were dismissed. Additionally, respondent argues that petitioners sought judicial review of the third appeal, which affirmed the Commissioner’s finding that petitioners did not meet their burden of proving that they were homeless.
While I need not decide whether any such abuse has actually occurred as alleged by respondent, it has not gone unnoticed that, due to petitioners’ filing of the previous three appeals, the students have attended respondent’s district on a tuition-free basis for three years notwithstanding the fact that petitioners have repeatedly failed to demonstrate that the students are homeless. I caution petitioners that, should they commence another administrative appeal concerning the students’ alleged homelessness, I may order petitioners to join the school district that serves the location where the students currently reside to make a determination as to the students’ residency. Moreover, if petitioners continue to assert that they are homeless and fail to allege a change in circumstances, I will be constrained to dismiss the appeal as barred by the facts of the instant decision. I will not abide an endless succession of appeals designed to take advantage of the provisions of McKinney-Vento and Education Law §3209.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 In accordance with McKinney-Vento, respondent maintained the students’ enrollment in school during the resolution of that dispute.
 As in the previous appeal, and in accordance with McKinney-Vento, respondent maintained the students’ enrollment in school during the resolution of that dispute.
 The record reflects that respondent has maintained the students’ enrollment in its district during the pendency of this appeal in accordance with the automatic stay provisions of McKinney-Vento and State law. While respondent submitted a “motion to vacate the stay,” my Office of Counsel advised the parties that such a motion could not be entertained in an appeal pursuant to Education Law §310 and set an expedited schedule for briefing of the appeal.
 In any event, the reply reiterates petitioners’ claims of homelessness but does not provide an address or any further information concerning petitioners’ current living arrangements, the issue of the instant appeal.
 Respondent’s mootness argument and its request to designate another school district as the students’ school district of attendance, origin or residence are similarly rejected as they are duplicative of respondent’s preclusion arguments.
 Education Law §3209(1)(a-1) excludes from the definition of “homeless child” a child in a foster care placement or receiving educational services under certain provisions of Education Law §3202 or Articles 81, 85, 87 or 88 of the Education Law, circumstances not presented in this appeal.
 The record further reflects that petitioners refused to share information concerning the location of their current residence with respondent prior to commencement of this appeal.
 The surveillance on one of these seven days, October 15, 2019, was circumstantial, but nevertheless persuasive. The investigator “got delayed at [a] traffic light” while following petitioners’ vehicle, but, when he arrived at the school, petitioners’ vehicle “drove past” him “from [the direction of] the student drop off area.”
 Petitioners state on appeal that one of the students “is a Senior student with many opportunities for scholarships.” While neither party has expressly addressed the issue, to the extent petitioners attempt to implicitly raise the issue of entitlement to the “terminal year” provisions of State law, this claim would be without merit. Education Law §3209(2)(c) outlines three circumstances under which a “homeless child shall be entitled to attend the schools” of a district. Under each circumstance, a student shall be entitled to attend the school district of origin or location, as applicable, “for the duration of homelessness and until the end of the school year in which such child becomes permanently housed and for one additional year if that year constitutes the child’s terminal year in such building.” As this provision indicates, a student’s entitlement to remain in a school building for his or her terminal year is contingent upon a finding that he or she was, in fact, homeless. Here, the students have never been found to be homeless by the district, the Commissioner, or a court. Therefore, the terminal year provision of State law does not apply in this case (Appeal of D.D. and M.D., 59 Ed Dept Rep, Decision No. 17,731).