Decision No. 13,658

(August 26, 1996)

Siben & Siben, L.L.P., attorneys for petitioners, Michael S. Cox, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal respondent's determination that their children, Justina, Heather and Joseph, are not residents of the East Islip Union Free School District ("district") and are therefore not entitled to attend its schools tuition-free. The appeal must be dismissed.

At least one of petitioners' children has attended the district's schools since 1989 when petitioners' oldest daughter, Justina, started school. At the beginning of the 1995-96 school year, Joseph, Heather and Justina were first, second and third graders, respectively, in the district's elementary schools, providing the address of 941 Montauk Avenue, Islip Terrace, as their home.

In October 1995, an anonymous person called the district to report that petitioners were improperly using the address of 941 Montauk Avenue for residency purposes and that petitioners and their children were actually residing at 147 Babylon Street, Islip Terrace, outside the district. On October 25, 1995 at 4:50 p.m., a district representative visited 147 Babylon Street and found no one home. On the following day, at 5:15 p.m., the representative returned to 147 Babylon Street and found Mrs. Steinberg and her three children at that address. At that time, the representative explained to Mrs. Steinberg that 147 Babylon Street was outside the district.

Thereafter, the representative conducted a surveillance of 147 Babylon Street on five mornings over a period of several weeks. On four of those occasions, the representative observed Mrs. Steinberg leave 147 Babylon Street and drive one or more of her children to the district's schools. On at least one of those occasions, the representative saw Mrs. Steinberg check the mail box at that address.

By letter dated December 12, 1995, the district's residency verification officer advised petitioners that the district's investigation indicated that petitioners' children did not reside in the district. On that same day, petitioners requested that the superintendent review this determination. On December 14, 1995, petitioners met with the superintendent. At that time, Mr. Steinberg stated that his father owned both 941 Montauk Avenue and 147 Babylon Street. In addition, petitioners presented their driver's licenses which listed the address of 941 Montauk Avenue.

Petitioners commenced this appeal on January 2, 1996 and requested an interim order. On January 10, 1996, I granted petitioners' request and ordered respondent to admit Justina, Heather and Joseph to the district's schools pending a determination on the merits.

Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Residence is determined based upon an individual's physical presence as an inhabitant within the district combined with the intent to remain (Appeal of Rosen, 33 Ed Dept Rep 443; Appeal of Stokes, 32 id. 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235).

Petitioners insist that they are residents of the district and submit copies of their driver's licenses to establish residence. However, other than their driver's licenses, petitioners offer no other documentary proof of residence. Instead, petitioners merely assert that Mr. Steinberg's father owns both 941 Montauk Avenue and 147 Babylon Street and that the children spend time at both residences. There is no explanation, however, for this purported arrangement.

While petitioners submit some evidence of having lived at one time within respondent's district, respondent submits substantial evidence that petitioners no longer reside there. The district's representative conducted a surveillance of 147 Babylon Street on five days between November 16, 1995 and December 7, 1995. The representative's affidavit cites several instances where Mrs. Steinberg drove her children from that address to the district's schools. In addition, in a site visit to 147 Babylon Street in October 1995, the representative found Mrs. Steinberg and the children at that address. Petitioners provide no adequate explanation for the results of this surveillance either in their petition or by reply.

While the evidence offered by respondent is not overwhelming, petitioners have simply offered inconclusive proof that they reside within the district. In sum, the evidence before me is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioners and their children are not residents of the district. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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