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Decision No. 12,565

Appeal of WILLIAM and GWENDOLYN COLEMAN, on behalf of their children, SUDAN and BILLY D., from action of the Malverne Union Free School District regarding residency.

Decision No. 12,565

(August 19, 1991)

Frederick K. Brewington, Esq., attorney for petitioners

Jaspan, Ginsberg, Ehrlich, Schlesinger, Silverman and Hoffman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from a decision of respondent district that their children are not entitled to attend the district's schools, on the ground that petitioners and their children do not reside within the district. I previously issued an interim order requiring that the children be allowed to remain in the Malverne schools pending a final decision. I now dismiss the appeal.

On October 3, 1988, petitioners' children were admitted to the Malverne Union Free School District; Sudan was admitted to the first grade, and Billy was admitted to kindergarten. Their registration forms indicate that they had previously attended P. S. 34 in Queens Village; the forms further indicate that their previous home address was 106-03 223rd Street, Queens Village, New York, and that their new address was 470 Coolidge Avenue, Rockville Centre, New York. The latter address is within the district, while the former address is not. It appears that one or both of the petitioners has an ownership interest in both of these properties. Both properties are residential. The Rockville Centre property is a two-family dwelling, with the upstairs rented out to tenants; the lower apartment, where petitioners claim to reside, is a two-bedroom flat.

Early in the 1990-1991 school year, officials at the Davison Avenue Elementary School, which both children attended, began to be suspicious about the children's trueresidence, in part because of statements made by Sudan to his teacher. The district's registrar then reviewed the children's registration forms, and that of an older Coleman child who had previously enrolled in the district. The registrar was aware that the 470 Coolidge Avenue address was a two-family dwelling, and from reviewing the registration form of the older child learned that an older relative, Alice Coleman (petitioner William Coleman's mother) also resided at that address. In early October, 1990, the registrar visited 470 Coolidge Avenue, and spoke with a fifth-grade student who lived in the upper apartment. The registrar was told that only Alice Coleman, her nurse, and Joey Coleman, an adult son of petitioner William Coleman, lived in the lower apartment.

On October 11, 1990, the superintendent notified Mr. and Mrs. Coleman that their residency within the district was in question. The district's registrar then conducted unannounced visits to 470 Coolidge Avenue on October 24 and October 27, 1990. Although there is a factual dispute as to whether or not Mrs. Coleman and the registrar spoke on October 24, it is clear that on October 27 neither petitioners nor their children were at the 470 Coolidge Avenue address. On that occasion the registrar encountered only Alice Coleman and her nurse. Based upon her visits, conversations, and observations, the registrar concluded that petitioners and their children did not reside at that address, and advised petitioners of that conclusion in a letter dated October 29, 1990.

A hearing was conducted by the superintendent on December 11, 1990. Both petitioners were present. Petitioners maintained that their actual residence is 470 Coolidge Avenue, and that both petitioners, Sudan, Billy, Alice Coleman, and Mr. Coleman's adult son Joey Coleman all reside there in a two-bedroom flat. Mr. Coleman stated that Joey Coleman had one of the bedrooms for himself.

The district's registrar recited the evidence of her two unannounced visits, and indicated that both Billy and Sudan had told their classmates and teachers that they do not live in Rockville Centre. She also recounted the conversation she had with the fifth-grade student in the upper apartment at 470 Coolidge Avenue.

After the hearing, the district received a report from a private investigation firm which indicated that the Colemans received mail at the Queens Village address, and that, by using a "reverse" telephone directory, it had been determined that the only telephone number provided by petitioners to the children's school was listed at 106-03 223rd Street, Queens Village.

By letter dated January 15, 1991, the superintendent advised petitioners that he had concluded that their children were not entitled to attend the Malverne schools. This appeal was commenced on February 22, 1991. On March 7, 1991, I issued the interim order mentioned above. Since that time, respondent has served its answer and supporting papers, wherein, among other things, it has identified the fifth-grade student with whom the registrar spoke, and has provided a copy of the report of the private investigation firm. Petitioners have not served a reply.

The general rule is that a school district in this state must provide free education to children whose parents or legal guardians reside within the district (Education Law '3202; Catlin v. Sobol, 77 NY2d 552). Where a district has made a determination as to residency pursuant to 8 NYCRR 100.2(y), as in this case, that determination will not be set aside unless it is arbitrary, capricious, or unreasonable (Matter of Shelmidine, 22 id. 206; Matter of Staulcup and Fonseca, 20 id. 11; Matter of Buglione, 14 id. 220).

After reviewing the further evidence which has been submitted in this case since the granting of the interim order, and noting that petitioners have not submitted any reply, it is now clear to me that respondent's determination was correct. As did the superintendent, I find it very difficult to believe that both petitioners, their two small sons, Mr. Coleman's mother, and Mr. Coleman's adult son, Joey, all reside in a two-bedroom apartment, while the residential premises at 106-03 223rd Street, Queens Village, is empty and used only for business purposes. This is even more difficult to believe when one considers that Mrs. Alice Coleman's health care aide also claims in an affidavit to "reside" in the same apartment five days per week.

I find it significant that the only telephone number provided to school administrators at which they may contact petitioners, if necessary, is assigned to a telephone at 106-03 223rd Street, Queens Village. Even if both parents are employed, as alleged here, it strains credibility that the only telephone contact provided would be with Mr. Coleman's alleged office, especially when he claims to be an international developer who is away a good portion of the time.

I am further persuaded of the correctness of respondent's position by petitioners' failure to offer any rebuttal with respect to statements made by Sudan to his teacher, as set forth in her two affidavits, that he does not live in the community where he goes to school, and by their failure to rebut the evidence given by the upstairs fifth-grade student with respect to the occupancy of the lower flat at 470 Coolidge Avenue.

As a result, I must conclude that petitioners do not in fact reside within the Malverne Union Free School District, and that their children are therefore not entitled to a free education within that district. They may, however, be eligible for the deduction from tuition set forth in Education Law '3202(3) if they enroll their children in the Malverne schools as nonresident students.