Appeal of SHARONA NOSRATI, on behalf of her child, from action of the Board of Education of the Great Neck Union Free School District regarding transportation.

Decision No. 18,375

(February 7, 2024)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Great Neck Union Free School District (“respondent” or the “board”) denying her child (the “student”) transportation to a nonpublic school during the 2023-2024 school year.  The appeal must be dismissed.

In fall 2022, petitioner requested transportation on behalf of the student to a nonpublic school for the 2022-2023 school year.  She identified her address as a location within the district (the “first in-district address”).  The district denied petitioner’s request because the first in-district address was more than 15 miles from the nonpublic school.  Petitioner appealed this decision, which respondent denied.

In March 2023, petitioner indicated to respondent that the student resided at a different address within the district (the “second in-district address”).  The second in-district address is less than 15 miles from the nonpublic school.  According to the record, petitioner and the student’s brother own the residence, and petitioner “sometimes” resides there.  Respondent unsuccessfully attempted to conduct a home visit of the second in-district address.

Petitioner subsequently requested transportation between the second in-district address and the nonpublic school for the 2023-2024 school year.  Respondent denied the request on the ground that petitioner did not reside at the second in-district address.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 16, 2023.

Petitioner asserts that the student resides at the second in-district address, which is within 15 miles of the nonpublic school.  Petitioner seeks a determination that the student is entitled to receive transportation.

Respondent argues that the student is not entitled to transportation because petitioner does not reside with the student at the second in-district address and she has not transferred custody of the student to his brother.

Initially, I must address the scope of the record.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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 that are not responsive to new material or affirmative defenses set forth in the answer.

Pursuant to Education Law § 3635 (1), a school district must provide transportation to children who reside within the district and attend nonpublic schools, provided that the distance between the child’s home and his or her nonpublic school is within the statutorily prescribed limits (Education Law § 3635 [1] [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  Specifically, a board must provide transportation for all children attending kindergarten through grade 8 whose home and school are between 2 and 15 miles apart, as well as all children attending grades 9 through 12 whose home and school are between 3 and 15 miles apart (Education Law § 3635 [1] [a]).  A school district may provide transportation for a lesser or greater distance only upon approval by the voters of the district (Education Law § 3635 [1] [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).

A child’s residence is presumed to be that of the custodial parent or legal guardian.  This presumption can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Generally, if a child’s parent or legal guardian continues to provide financial support for the child’s room, board, clothing, and other necessities, the parent or guardian has not relinquished custody and control (see Catlin v Sobol, 77 NY2d 552, 562-562 [1991]; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where the child’s parent or legal guardian retains decision-making authority over important matters such as the child’s medical care or education, a total transfer of custody and control has not occurred (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin, 77 NY2d at 562).

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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

The resolution of this appeal hinges upon whether petitioner resides at the second in-district address, which petitioner has not shown.  By petitioner’s own admission, she only “sometimes” resides at the second in-district address.  Petitioner further indicates that she owns the home and that the student’s brother “resides at the property with his family.”  The fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not automatically confer residency status (see Appeal of Rivers, 61 Ed Dept Rep, Decision No. 18,017; Appeal of S.L., 57 id., Decision No. 17,187).  

Additionally, petitioner has not rebutted the presumption that the student’s residence is with her, the custodial parent, at the first in-district address.  Petitioner admits that she has “not surrendered parental control of [the student] at this time.”  Accordingly, petitioner has not demonstrated a total transfer of custody and control to the student’s brother (see Appeal of Breiner, 62 Ed Dept Rep, Decision No. 18,277; Appeals of T.M., 58 id., Decision No. 17,496).  As such, respondent’s determination was supported by the evidence before it and cannot be considered unreasonable.

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

THE APPEAL IS DISMISSED.

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