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Decision No. 12,792

Appeal of PIERRE B., on behalf of his son, PIERRE-MICHAEL, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 12,792

(September 1, 1992)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that he is not a resident of the Sewanhaka Central High School District and its refusal to allow his son to attend its public schools. Previously I issued an interim order requiring respondent to allow petitioner's son to remain in school pending my final determination on the merits. I now dismiss this appeal.

Petitioner's son was a seventh grade student at respondent's Elmont Memorial High School for the 1991-92 school year. Respondent first challenged petitioner's residence in the Fall of 1989 when he attempted to enroll his children, based on the fact that petitioner's telephone listing and driver's license indicated an address in Hollis, Queens, outside the Sewanhaka Central School District.

Following a hearing pursuant to 8 NYCRR '100.2(y), respondent agreed to admit petitioner's children based on petitioner's testimony that their residence for approximately seven years in Hollis, Queens was now used exclusively for business purposes and that petitioner had since moved with his wife and children to 2244 Leighton Road, within respondent's district. Nonetheless, respondent surveilled the family and, based upon its investigation, issued a report in October and November 1991 which concluded that petitioner and his family actually resided in Hollis, Queens and were, therefore, not residents of the district.

The hearing was reopened on January 30, 1992. Petitioner testified that his family was forced to move from their Leighton Road home in October 1991 due to overcrowding and was temporarily living back at their original address in Hollis, Queens. According to petitioner, the house in Hollis, Queens has four bedrooms with at least one bedroom converted to an office. Petitioner asserts that since he intends to return to the Leighton Road address as soon as the owner's relatives move out, and is only living in Hollis temporarily, he and his family continue to reside in the district. Although petitioner testified that he does not have a lease on either property, he continues to pay rent to the owner of the Hollis house.

Respondent's attendance teacher testified at the hearing that the investigation revealed petitioner's children leaving their Hollis address during the Fall 1991 term to attend school. Based on the testimony and exhibits, the hearing officer concluded that petitioner was not a resident of the district. On March 17, 1992, petitioner was notified that his son would be excluded from school. This appeal ensued.

Education Law '3202(1) limits the obligation of school districts to provide tuition-free instruction to pupils who reside there (Matter of Buglione, 14 Ed Dept Rep 220). Section 3202(1) 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 payment of tuition.

Once residence is established, it is not lost until another residence is established through both intent and action expressing such intent (Matter of Gladwin, et al. v Power, et al., 21 AD2d 665, 249 NYS2d 980, aff'd 250 NYS2d 807, 14 NY2d 771; Appeal of Kenneth R., 30 Ed Dept Rep 297; Matter of Lundborg, 12 id. 268; Matter of Callahan, 10 id. 66). Although petitioner claims that he is only temporarily outside respondent's district due to circumstances beyond his control, the central issue here is whether, based on the evidence, he ever established residence in respondent's district in the first place.

Although petitioner asserts that he established a residence within respondent's district some time between 1989 and 1991, he offers no physical evidence, such as a lease or affidavit of the owner of the premises, to support his claim that he ever resided there. Petitioner presents no evidence, other than a statement of intent, that he is returning to the Leighton Avenue address. In fact, the record indicates that petitioner has substantial family, business, and community ties in Hollis, Queens, where he admittedly resided for several years, and continues to use the same premises not only for business purposes, but as a residence. Based on the record before me, I find that petitioner has neither verified that he ever established his residence in respondent's district, nor that he ever abandoned his residence in Hollis, Queens (See Appeal of Reifler, 31 Ed Dept Rep 235). Accordingly, I am compelled to dismiss the appeal.