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Decision No. 13,462

Appeal of RAMON DIAZ, on behalf of his sons, ROBERTO and HECTOR, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 13,462

(August 17, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that his sons, Roberto and Hector, are not residents of the Baldwin Union Free School District ("the district") and are, therefore, not entitled to attend its schools tuition free. The appeal must be dismissed.

Petitioner's sons have attended the Baldwin Union Free School District for nine years. In January 1995, petitioner purchased a home in Freeport, outside the district. In March 1995, the district's attendance supervisor saw petitioner drop his children off at their grandmother's residence within the district, on three occasions. Additionally, the principal of the Plaza Elementary School saw petitioner drop his children off at school. On May 15, 1995, petitioner acknowledged to the district's attendance supervisor that his children had stayed with him at his Freeport address, outside the district, in March 1995. On June 2, 1995, respondent excluded Roberto and Hector from attending its schools tuition free, asserting that they did not reside in the district. This appeal followed.

Petitioner seeks an order allowing his children to attend school tuition free in respondent's school district until the end of the 1994-95 school year. He contends that his children resided within the district from January 7, 1995 until the end of the school year. Respondent contends that this appeal is moot, because the school year has ended and because petitioner admits that his children now reside with him outside the district. Indeed, in his June 13, 1995 petition, petitioner concedes that his children permanently reside with him in Freeport, outside the boundaries of the district.

This appeal must be dismissed as moot. The record reflects that petitioner and his sons reside in Freeport, outside the boundaries of respondent's school district. Moreover, the relief petitioner requested, to allow his sons to remain in the district's schools until the completion of the 1994-95 school year, is no longer an issue as the school year is over. Since the Commissioner only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest, the appeal is moot (Appeal of a Student with a Disability, 34 Ed Dept Rep 204; Appeal of Lewis, 33 id. 520).

Moreover, there is no longer an issue of residence for the Commissioner to decide. Petitioner asserts that he and his sons permanently reside outside the district. Residence for purposes of Education Law '3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc. 2d 60; Appeal of Varghese, 34 Ed Dept Rep 455; Matter of Whiteman, 24 id. 337) and an intent to reside in the district (Appeal of Varghese, supra; Matter of Whiteman, supra; Matter of Manning, 24 Ed Dept Rep 33). By petitioner's own admission he and his sons are not inhabitants of respondent's district and do not intend to reside there. Thus, residency is not in controversy.