Decision No. 17,902
Appeal of A.B., on behalf of her son C.N., from action of the Board of Education of the Hyde Park Central School District regarding residency.
Decision No. 17,902
(August 5, 2020)
Jonathan Bobrow Altschuler, P.C., attorneys for petitioner, Jonathan B. Altschuler, Esq., of counsel
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Gregory R. Picciano, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Hyde Park Central School District (“respondent”) that her son, C.N. (“the student”), is not a district resident and, therefore, is not entitled to attend district school’s tuition-free. The appeal must be dismissed.
Petitioner and the student previously resided at a location within respondent’s district (the “former in-district address”) and the student attended respondent’s schools. According to respondent’s residency officer, the district began receiving “multiple anonymous phone calls” in February 2019, indicating that the former in-district address was in foreclosure and that “[p]etitioner and [the student] did not live in the district.” In March 2019, respondent attempted to send mail to the former in-district address, but the mail was returned with a forwarding address outside of respondent’s district in Poughkeepsie, New York (the “out-of-district address”).
By letter dated June 18, 2019, the residency officer informed petitioner that the district had reason to believe that she and the student were no longer district residents and, therefore, the student was no longer entitled to attend respondent’s schools. The residency officer further advised petitioner that they could meet to discuss the matter, at which time petitioner could provide “current proof of residency.” The residency meeting took place on June 25, 2019. According to the residency officer, petitioner acknowledged that the former in-district address was in foreclosure and that she and the student were residing at the out-of-district address with her boyfriend. Petitioner asserted, however, that she was actively searching for housing in respondent’s district. Based upon this representation, respondent permitted the student to attend summer school as a district resident.
In August 2019, the district determined that petitioner and the student continued to reside at the out-of-district address. By letter dated August 22, 2019, the residency officer informed petitioner that the student was no longer eligible to attend respondent’s schools.
On September 30, 2019, petitioner presented registration paperwork to the district claiming that she and the student resided at a new location within respondent’s district (the “in-district address”). Petitioner also provided a residency affidavit signed by the owner of the in-district address indicating that petitioner and the student lived with her. Based upon this information, respondent allowed the student to re-enroll within its district.
Between November 15, 2019 and December 19, 2019, respondent conducted a residency investigation, which included surveillance of the in-district and/or out-of-district addresses on seven days. During this investigation, an investigator observed the student at the in-district address on only one day, December 13, 2019. Specifically, in the morning, the investigator observed the student “walking from the driveway” of the in-district address and boarding a school bus. Later that same day, the investigator observed the student briefly return to the in-district address in a vehicle during the afternoon.
On three days, an investigator observed the student at the out-of-district address with petitioner: namely, on November 15 and December 10, 2019, an investigator observed petitioner and the student departing the out-of-district address in the morning, while on November 21, 2019, an investigator observed them returning to the out-of-district address in the afternoon. An investigator also observed petitioner at the out-of-district address by herself on the morning of November 20, 2019.
In addition, on December 10, 2019, an investigator spoke with a neighbor who lived next to the in-district address. The neighbor stated that the owner of the in-district address – whom the neighbor identified as “possibly the mother” of petitioner’s boyfriend – lived alone but “allow[ed] [petitioner] to use the address for the sake of [the student] and school attendance.” The neighbor further stated that the mobile home park in which the in-district address is located is “an adult community and children are not allowed to reside there.” The investigator confirmed that the sign for the mobile home park identified it as “[a]n [a]dult [c]ommunity.”
By letter dated January 10, 2020, the residency officer advised petitioner that, “based on an extensive investigation,” the district had determined that she and the student were not district residents. On January 29, 2020, petitioner and her attorney met with the residency officer to discuss the student’s residency, and the residency officer granted petitioner’s request for more time to present proof of residency. Thereafter, the district received a letter from petitioner dated January 30, 2020, in which petitioner disputed the results of the district’s investigation and expressed her belief that the student was entitled to continue attending the district’s schools due to her and the student’s “temporary [residency] status.”
In a letter dated February 14, 2020, the residency officer informed petitioner of her determination that petitioner and the student were not district residents and, therefore, the student’s “last day of attendance” would be March 13, 2020. The residency officer explained that she based this determination on the following evidence:
- The district’s receipt of multiple anonymous phone calls, beginning in February 2019, indicating that petitioner did not live within the district;
- Beginning in March 2019, correspondence that respondent sent to petitioner at the former in-district address was returned to the district and identified the out-of-district address as petitioner’s forwarding address;
- At the June 25, 2019 residency hearing, petitioner “admitted that [she] and [the student] were living” at the out-of-district address with petitioner’s boyfriend;
- In January 2020, the district received an anonymous letter indicating that petitioner and the student did not reside within the district, accompanied by a copy of a letter sent by the Dutchess County Board of Cooperative Educational Services (“Dutchess County BOCES”) to the student at the out-of-district address;
- A “database search” identified petitioner’s address as the out-of-district address;
- The district’s surveillance evidence portrayed the student at the out-of-district address more often than the in-district address;
- Information obtained from the New York State Department of Vehicles showed that petitioner’s vehicle was registered to the out-of-district address;
- A social media posting dated November 22, 2018, in which petitioner indicated that she, her boyfriend, and the student spent their “first official Thanksgiving living together as a family.”
This appeal ensued. Petitioner’s request for interim relief was granted on March 17, 2020.
Petitioner contends that she and the student reside at the in-district address. Petitioner admits that she and the student visit her boyfriend at the out-of-district address but asserts that this only occurs “from time to time.” For relief, petitioner requests a determination that the student is a resident of respondent’s district entitled to attend the district’s schools without payment of tuition.
Respondent contends that the petition should be dismissed and that its determination was rational.
I must first address a procedural matter. Petitioner submitted a “reply affidavit” in response to respondent’s opposition to the stay request. This reply affidavit contains additional exhibits in support of the petition. Although additional affidavits, exhibits and other supporting papers may be submitted by application pursuant to §276.5 of the Commissioner’s regulations, petitioner has not made such an application. Nor may I accept the reply affidavit as petitioner’s reply, as the reply affidavit was served upon respondent prior to respondent’s service of its answer (Appeal of DeLouise, 49 Ed Dept Rep 384, Decision No, 16,058). In any event, I note that 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Accordingly, I will not consider petitioner’s reply affidavit in rendering my determination.
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).
I find that, on this record, petitioner has failed to meet her burden of proving that she and the student reside in respondent’s district. To support her contention that she lives within the district, petitioner submits copies of the registration paperwork she submitted to the district in September 2019, including a residency affidavit dated September 11, 2019 and signed by the owner of the in-district address indicating that petitioner and the student live at the in-district address, as well as a mortgage statement for the in-district address in the owner’s name. However, petitioner submits no other evidence, such as a current affidavit from the owner of the in-district address or affidavits from neighbors or her boyfriend, to show that she and the student are residents of respondent’s district.
Respondent relies upon multiple pieces of evidence to support its determination, including: (1) its surveillance evidence, which depicted petitioner and the student together at the out-of-district address on three occasions, but only depicted the student at the in-district address on a single occasion; (2) the statement from a neighbor of the in-district address indicating that petitioner and the student did not live at the in-district address and, indeed, that the student would be precluded from doing so because the in-district address is part of an adults-only community; (3) information from the New York State Department of Motor Vehicles revealing that petitioner’s car is registered to the out-of-district address; (4) multiple anonymous letters and phone calls stating that petitioner and the student reside at the out-of-district address; and (5) a November 14, 2019 letter from the Dutchess County BOCES addressed to the student at the out-of-district address.
Although petitioner asserts that respondent’s surveillance evidence was minimal and explains that she and the student spend the night at the out-of-district address “from time to time,” respondent’s surveillance evidence nevertheless portrayed petitioner and/or the student at the out-of-district address more often than the in-district address. Additionally – and significantly – petitioner did not submit a reply or otherwise respond to the other evidence submitted by respondent suggesting that she and the student reside at the out-of-district address. Although respondent’s evidence may not be overwhelming, petitioner bears the burden of proof in this appeal. Accordingly, on this record, I find that petitioner has failed to carry her burden of proof to establish that the student is a resident of respondent’s district; as such, I cannot conclude that respondent’s determination was arbitrary or capricious (Appeal of Students Suspected of Having Disabilities, 54 Ed Dept Rep, Decision No. 16,725; see Appeal of S.A., 59 id., Decision No. 17,860).
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 student’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Based on petitioner’s January 30, 2020 letter, respondent conducted a “hearing to determine [p]etitioner’s alleged homelessness” on February 13, 2020. According to the residency officer, who is also respondent’s homeless liaison, petitioner “stated at the hearing that she never claimed to be homeless.”
 The residency officer previously sent petitioner a letter dated February 3, 2020 indicating that petitioner and the student were not district residents. However, as explained in the February 14, 2020 letter, “[t]he February 3, 2020 determination letter did not include information regarding [petitioner’s] right to appeal [the] residency determination to the Commissioner of Education” consistent with the Commissioner’s regulations (see 8 NYCRR §100.2[y]).
 The residency officer also found that petitioner and the student were not homeless within the meaning of McKinney-Vento or State law. Petitioner does not seek review of this determination on appeal.
 The record reflects that the student attends a program through Dutchess County BOCES.
 The residency officer’s February 3, 2020 letter references documents that petitioner has not submitted on appeal, including “three ... letters from community residents stating that [petitioner] reside[s]” at the in-district address and “a telephone bill in [petitioner’s] name.”
 While some of this evidence is hearsay, 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 Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; Appeal of Watson, Wyche and Brazley, 56 id., Decision No. 17,082). I note that, although petitioner does not object to respondent’s evidence as hearsay, any objection to hearsay evidence would go to its relative unreliability and, thus, its weight (Appeal of Tashoff, 50 Ed Dept Rep, Decision No. 16,140).