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Decision No. 13,426

Appeal of VENESSA CUPID, on behalf of her children, CHERYL, MASHA and RONNIE MOONA, from action of the Board of Education of the Greenburgh Central School District No. 7 regarding residency.

Decision No. 13,426

(June 9, 1995)

Thaeddeus J. McGuire, Esq., attorney for petitioner

Arnold B. Green, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that she is not a resident of the Greenburgh Central School District and refusal to allow her children to attend its public schools. The appeal must be dismissed.

Petitioner's children, Cheryl, Masha and Ronnie, were students at respondent's Woodlands High School in Greenburgh at the commencement of the 1993-94 school year. On April 21, 1994, respondent's superintendent sent petitioner a letter stating that pursuant to 8 NYCRR 100.2(y), he had determined that her children were not residents of respondent's district based upon the inability of district officials to reach her by mail or phone at the address within the district which she claimed to be her residence. This letter further informed petitioner that, as a result of his determination, her children would be excluded from respondent's schools effective April 27, 1994. Petitioner asserts that she received this letter on April 26, 1994 and immediately attempted to contact respondent's superintendent to submit additional proof of her residency in the district. Petitioner further claims that respondent's superintendent refused to speak with her or accept the additional proof of residency which she offered. Respondent's superintendent asserts that when petitioner tried to reach him on April 26, his secretary informed her of her right to submit additional documentation concerning her residency and that petitioner in fact submitted such additional documentation. He further asserts that, after reviewing this information, he upheld his original decision to exclude petitioner's children from respondent's schools as nonresidents and asked his secretary to orally communicate this decision to petitioner. This appeal ensued.

Education Law '3202(1) limits the obligation of school districts to provide tuition-free instruction to students who reside there (Appeal of Baguidy, 32 Ed Dept Rep 162; Matter of Buglione, 14 id. 220). Section 3202(1) provides:

a person over 5 and under 21 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.

Petitioner asserts that she established a new residence within respondent's district on or about January 1, 1994. Petitioner further maintains that she and her children continue to reside at that address. In support of her claim, petitioner submits a lease agreement dated January 1, 1994 for a term ending December 31, 1994, rent receipts from January 1994 through May 1994, and mail addressed to petitioner at her claimed residence. Respondent submits an affidavit of a private investigator who conducted surveillance on petitioner from June 1, 1994 through June 21, 1994. The private investigator's surveillance provides substantial evidence that petitioner and her children reside outside of respondent's district. The investigator's affidavit cites several instances where petitioner's children were picked up from school and driven to an address outside of the district, as well as other instances where the children were seen at that same address after school hours. Significantly, the investigator states in his affidavit that on the morning of June 20, 1994 he rang the doorbell for that address and petitioner's daughter answered the door. The investigator further states that in response to his questions, petitioner's daughter told him that she lived at that address and that her mother was not home at the time. Petitioner submits no further proof in reply to the surveillance report.

Petitioner bears the burden of establishing her "residence" in respondent's district (Appeal of Baguidy, 33 Ed Dept Rep 32). For purposes of Education Law '3202(1), "residence" means "domicile" which is established by one's physical presence and the intention to remain there permanently (Appeal of Baguidy, supra; Appeal of Reifler, 31 Ed Dept Rep 235). While petitioner submits some evidence of renting an apartment within respondent's school district, respondent submits substantial evidence demonstrating petitioner's physical presence at a residence outside of respondent's district. As petitioner has failed to establish actual physical presence, I find that petitioner and her children reside outside of respondent's district.