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Decision No. 12,769

Appeal of ANTHONY S. from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 12,769

(August 5, 1992)

Plunkett & Jaffe, P.C., attorneys for respondent, Ronald A. Longo, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a determination of respondent City School District of the City of White Plains (the district) excluding his children from school on the ground they are not residents of the district. The appeal must be dismissed.

Prior to the 1991-92 school year, petitioner resided at 18 Osborne Street, White Plains, where his children attended the public schools of the district. In September 1991, however, after correspondence sent by the district to petitioner's address was returned, respondent commenced an investigation into petitioner's residency. A private investigator hired by the district subsequently reported that petitioner and his family were living at 24 Montgomery Avenue, in Elmsford, outside the district. By letter dated September 23, 1991, therefore, respondent's Assistant Superintendent of Pupil Services (the Assistant Superintendent) advised petitioner:

It is our understanding that you do not reside within the White Plains School District. Accordingly, you are being advised that [your children] are not entitled to attend the White Plains Public Schools. You do have the opportunity to submit ... any information you wish concerning the right of the children to attend our schools. This information must be received ... no later than Monday, October 7.

In reply, petitioner admitted to renting the property in Elmsford, but claimed he used it for business purposes. Although petitioner conceded that his family was living temporarily at the Elmsford address, he claimed that they did so only while repairs were being made to a house he had leased at 10 Washington Avenue, within the district, to ready it for occupancy. Based on that information, respondent permitted petitioner's children to continue attending school in the district.

In February 1992, respondent reviewed petitioner's residency status. Once again, however, the private investigator reported that petitioner and his family were living at the Elmsford address. There was no indication that the family occupied the premises at 10 Washington Avenue. By letter dated February 27, 1992, the Assistant Superintendent advised petitioner that, as nonresidents, his children would no longer be permitted to attend the schools of the district. The Assistant Superintendent gave petitioner until March 6, 1992 to submit information regarding the children's right to attend school in White Plains. Again, petitioner submitted his lease for the house at 10 Washington Avenue, and reiterated that he maintained the Elmsford address for business purposes only. He stated that the house at 10 Washington Avenue still was not ready for occupancy. On March 6, 1992, however, respondent notified petitioner of its determination that his children were no longer residents of the district.

Petitioner commenced this appeal on March 23, 1992. In his petition, he requested an interim order directing respondent to maintain his children in its schools pending a decision on the merits. Interim relief was granted on March 30, 1992.

The Education Law provides:

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 (Education Law '3202[1]).

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education only to students whose parents or legal guardians reside within the district (Appeal of Wilkerson, 32 Ed Dept Rep ___, Decision No. 12757, dated July 23, 1992). Since the burden of proof regarding residence lies with the party alleging a change, the issue before me is whether respondent has satisfied its burden of establishing that petitioner no longer resides in the district (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38, 40; Appeal of Gibson, 31 Ed Dept Rep 284, 287). For purposes of Education Law '3202, residence is established by one's physical presence as an inhabitant within the district, combined with an intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235, 237; Appeal of Bonfante-Ceruti, supra).

The weight of the evidence supports respondent's contention that petitioner and his family are no longer residents of the district. Respondent has submitted affidavits establishing that the house at 10 Washington Avenue, owned by petitioner's brother-in-law, is divided into four apartments, all of which are occupied. According to the district's private investigator, who spoke with the owner and with each of the tenants, the building's attic apartment is occupied by a Mr. James; the second floor apartment is occupied by a Ms. Severin and her son; the first floor apartment is occupied by Mr. Preudhomme, the owner; and the basement apartment is occupied by a Mr. Francis. Ms. Severin and her son both stated that petitioner's family does not live at 10 Washington Avenue. During an interview, Mr. Preudhomme initially told the private investigator that petitioner's family lived in Elmsford. As the private investigator left the interview, however, Mr. Preudhomme yelled, "they live here sometimes: they stay in the third floor." On another occasion, when asked if petitioner's family lived in the building, Mr. Preudhomme replied, "I give `em a lease for the second floor." When the private investigator asked how the two-bedroom second floor apartment could accommodate Ms. Severin, her son and petitioner's family of seven, Mr. Preudhomme told the investigator to "take it up" with petitioner.

Petitioner's children were never observed entering or exiting the building at 10 Washington Avenue. They were, however, frequently observed at the Elmsford address, and petitioner was observed driving his children to school from the property at 24 Montgomery Avenue on numerous occasions. Telephone records, moreover, confirm that phone service is provided to the property at 24 Montgomery Avenue for Uris Preudhomme - petitioner's wife.

In light of the private investigator's reports, I find petitioner's claim regarding the habitability of 10 Washington Avenue, and his intent to return to the district, not persuasive. Even if that intention were shown, however, respondent has established that petitioner and his family do not physically reside in the district (Appeal of Reifler, supra; see, Appeal of Wilkerson, 32 Ed Dept Rep ___, Decision No. 12757, supra).

If petitioner's family subsequently returns to the district, nothing in this decision precludes petitioner from submitting to respondent additional documentation reestablishing his children's residency in the district. On the record before me, however, I find that petitioner's children are not residents of the district and, consequently, are not entitled to attend the public schools of the district without the payment of tuition.