Appeal of ZHONG HUI CHEN, on behalf of his children IRIS and KOBE CHEN, from action of the Board of Education of the Manhasset Union Free School District regarding residency.

Decision No. 17,914

(August 28, 2020)

White, Cirrito & Nally, LLP, attorneys for petitioner, James P. Nally, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Manhasset Union Free School District (“respondent”) that his children, Iris and Kobe (collectively, where appropriate, “the students”), are not district residents.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, in September 2019, the students’ mother enrolled Kobe in respondent’s district and represented that she and Kobe had moved into a house located within respondent’s district (the “in-district address”) on August 28, 2019.  Although the students’ mother did not produce all of the required documentation to register Kobe, respondent nevertheless admitted him to its schools given the impending start of the 2019-2020 school year.

In November 2019, the students’ mother attempted to enroll Iris in respondent’s district.  The students’ mother made several representations in Iris’s registration packet that caused respondent to question the students’ residency within the district.

In letters dated November 20, 2019, respondent’s deputy superintendent for business and finance (“deputy superintendent”) notified the students’ mother that Kobe would be excluded from respondent’s schools as a nonresident after November 27, 2019 and that Iris would not be permitted to register as a resident student unless the students’ mother submitted additional information in support of the students’ residency.

On December 2, 2019, petitioner and the students’ mother met with the deputy superintendent to discuss the students’ residency.  In letters dated December 9, 2019, the deputy superintendent notified the students’ mother of her determination that Kobe and Iris were not entitled to attend respondent’s schools because they were neither district residents nor homeless students.[1]  The letters advised the students’ mother that she could appeal this determination to the superintendent.  On January 9, 2020, petitioner and the students’ mother met with the superintendent and the deputy superintendent.

In letters dated January 16, 2020, the superintendent advised petitioner and the students’ mother that he had upheld the deputy superintendent’s residency determination.  The superintendent indicated that Kobe would be “excluded from the [d]istrict effective at the end of the school day on Friday, January 24, 2020” and that Iris would not be permitted to enroll in the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 4, 2020.

Petitioner asserts that he, the students’ mother and the students reside at the in-district address.  Petitioner requests a determination that the students are residents of the district and, thus, entitled to attend its schools without payment of tuition.

Respondent argues that the appeal must be dismissed, inter alia, because petitioner has commenced a civil proceeding in Supreme Court, Nassau County seeking the same or similar relief.  Respondent further contends, on the merits, that its determination was based on the evidence before it.

The appeal must be dismissed based on an election of remedies.  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).

On February 13, 2020, petitioner commenced a civil proceeding in Supreme Court, Nassau County, by filing a petition presenting identical allegations and seeking identical relief as in the instant petition (Matter of Chen v. Board of Education of the Manhasset Public School District, Index. No. 602301/2020 [filed Feb. 13, 2020]; see CPLR §304[a]).[2]  That proceeding remains pending.  Thereafter, petitioner commenced this appeal pursuant to Education Law §310 by serving the instant petition upon respondent on February 14, 2020 and filing a copy with my Office of Counsel on February 18, 2020 (see 8 NYCRR §§275.8[a], 275.9[a]).[3]

Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that petitioner has elected to raise in Supreme Court, particularly where he seeks the same relief therein that he seeks in this proceeding (see Appeal of Minaya, 60 Ed Dept Rep, Decision No. 17,879; Appeal of Moriarty, 57 id., Decision No. 17,265; Appeal of D.S., 57 id., Decision No. 17,171; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).[4]  Therefore, the appeal must be dismissed without prejudice to the commencement of a new appeal within 30 days of the final disposition of the pending civil proceeding if any additional relief is necessary in view of such disposition (Appeal of D.S., 57 Ed Dept Rep, Decision No. 17,171; Appeal of D.L., 53 id., Decision No. 16,591; Appeal of a Student with a Disability, 49 id. 180, Decision No. 15,991).

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

THE APPEAL IS DISMISSED WITHOUT PREJUDICE.

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