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Decision No. 12,688

Appeal of TESFAYE TADESSE, on behalf of his son, Arki Tesfaye, from action of the Board of Education of the City School District of the City of Yonkers, regarding residency.

Decision No. 12,688

(April 22, 1992)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that his son is not a resident of the Yonkers City School District and is, therefore, not entitled to continue to attend its schools. The appeal must be dismissed.

In September 1991, petitioner, who had been serving as the permanent representative of Ethiopia to the United Nations, was compelled to leave the government residence located in the respondent's district because of a change of government in Ethiopia. Petitioner alleges that in August 1991 he consulted with one of respondent's supervisors in charge of registration and was assured that a residence petitioner was considering leasing was located within respondent's district. However, after leasing the residence, he was informed that such address was located in the Tuckahoe Union Free School District.

Petitioner indicates that because he could not be released from his lease on the Tuckahoe property, he rented another apartment located within respondent's district. In a letter dated October 8, 1991, respondent informed petitioner that since the "bare lease of a Yonkers apartment where you are not physically present does not change your residence to Yonkers," petitioner's son could not attend respondent's schools on a tuition free basis. Petitioner then commenced this appeal together with a request for an interim order to allow his son to attend school pending a decision in his appeal. Thereafter, I denied petitioner's request for interim relief.

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 in the district in which such person resides without the payment of tuition (Education Law "3202[1]). The record establishes that petitioner resides at the Tuckahoe residence. The mere lease of an apartment in Yonkers while petitioner continues to reside at the Tuckahoe residence is insufficient to establish petitioner's residence within respondent's district.

Furthermore, respondent cannot be held liable for the alleged misrepresentation by its supervisor of registration that the Tuckahoe address was within respondent's district. Petitioner appears to argue that because he relied to his detriment on a statement made by respondent's employee, respondent should be equitably estopped from removing his son from its schools, notwithstanding the fact that he is not a resident. The record is unclear as to who allegedly made the misrepresentation or what was actually said by such individual. Respondent denies knowledge or information as to the incident and petitioner cannot identify the individual who allegedly made such misrepresentation. Even if an employee of respondent did make such statement, the courts have held that, except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Associates v. City of New York, 71 NY2d 274, 525 NYS2d 176; Hamptons Hosp. v. Moore, 52 NY2d 88, 436 NYS2d 239; see also Matter of Ceparano, 17 Ed Dept Rep 298; Appeal of Siderius, 31 Ed Dept Rep 288).