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Decision No. 13,804

Appeal of ANTONIO PROSPERO, on behalf of his daughter, MELISSA PROSPERO, from action of the Board of Education of the Pleasantville Union Free School District regarding residency.

Decision No. 13,804

(August 1, 1997)

Vozza & Vozza, attorneys for petitioner, Rocco Vozza, Esq., of counsel

Arnold B. Green, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pleasantville Union Free School District that his daughter, Melissa, is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

In May 1990, petitioner entered into a contract to purchase property at 286 Broadway, Pleasantville. Prior to entering into the contract, petitioner attempted to confirm that the property was in respondent's school district. The previous owner, Antonio Carducci, obtained a letter from Margaret Clarke, District Clerk, dated May 15, 1990 confirming that 286 Broadway was listed on the tax rolls obtained from the Town of Mount Pleasant as being within respondent's school district. On November 26, 1990, petitioner purchased the property. By letter dated May 31, 1991, Ms. Clarke notified Mr. Carducci that new information indicated that the property at 286 Broadway was in the Mount Pleasant school district.

By letter dated June 25, 1991, Philip L. Waylonis, Esq., inquired as to whether arrangements could be made for the Prospero children to attend respondent's school district. By letter dated July 12, 1991, respondent's attorney notified Mr. Waylonis that "if Mr. and Mrs. Prospero move and establish new residence in the Mount Pleasant School District, we cannot accept their children as students without the payment of tuition."

In January 1995, petitioner moved to the property at 286 Broadway, then renamed 4 Fairway Drive. By letter dated January 23, 1997, respondent's superintendent notified petitioner and his wife that since Melissa was not a district resident, she could not attend the district tuition-free. The letter further informed them that Melissa would be dropped from their rolls effective February 10, 1997 unless she attended as a tuition student. This appeal ensued. Petitioner asks me to reverse the district's decision. Petitioner's request for interim relief pending a decision on the merits was denied on February 7, 1997.

Petitioner argues that he relied on the district clerk's statement in making his decision to purchase the property. He alleges that a search performed by a title company before he purchased the property also confirmed that the parcel was within respondent's school district. He also contends that the former superintendent, Dr. Gray, assured him that the matter was brought before the board of education and that a determination was made that the parcel was within the district. Petitioner argues that the board of education should be estopped from taking action inconsistent with its initial representations. He further argues that since a seven-year time period has elapsed, district action should be barred from action by the doctrine of laches.

Respondent maintains that since Melissa is not a district resident, she is not entitled to attend its schools without the payment of tuition. It argues that estoppel does not apply against government entities except in limited circumstances not present here. It further argues that there was no reliance because petitioner was aware that the property was not in respondent's school district long before he moved in 1995 and that the district had notified him that his children would not be admitted except as tuition students. Respondent contends that there are no board meeting minutes reflecting any determination or agreement regarding the property. One board member, Anne C. Stokes, who has been on the board since 1991 "recall[s] some discussion of the issue in 1991 but the issue was not ripe for decision at that time since the family still resided in the school district." Respondent further argues that even if estoppel applied, relief is barred under the doctrine of "unclean hands," because petitioner moved to an address which he knew was outside of the district without notifying the district. Respondent also argues that the doctrine of laches does not apply because it did not learn of petitioner's move until January 1997 and took action to exclude petitioner's daughter in a timely manner. Respondent finally argues that petitioner's claim is untimely because he is complaining that he was aggrieved by events that occurred in 1990 and 1991.

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

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.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). Petitioner and his family reside at 4 Fairway Drive, Pleasantville, which is not located in respondent's school district. Therefore, absent other grounds for sustaining the appeal, Melissa is not entitled to attend respondent's school district tuition-free.

Petitioner argues that respondent should be estopped from excluding Melissa because he relied on representations of the school district when he purchased the property to which he later moved. Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. v. Moore, 52 NY2d 88; Appeal of Tadesse, 31 Ed Dept Rep 426). Furthermore, when petitioner moved in 1995, he could no longer have been relying on earlier misrepresentations because they had since been corrected. In 1991, petitioner was notified in writing that his children would not be entitled to attend district schools tuition-free if he were to move to the subject property. Therefore, equitable estoppel does not prevent respondent from excluding Melissa.

Petitioner also argues that respondent should be barred by the doctrine of laches. "Laches is an equitable doctrine which bars recovery where a party's inaction has prejudiced another party, making it inequitable to permit recovery" (Vickery v. Village of Saugerties, 106 AD2d 721). Petitioner and his family moved to Fairway Drive in 1995, but failed to notify respondent that they had moved out of the district. The record indicates that in December 1996 the superintendent became aware that the Prosperos no longer lived in the district. After discussing the matter with petitioner, the district notified him of its determination in a letter dated January 23, 1997. This is not an unreasonable delay, and petitioner has failed to indicate how he has been prejudiced by it. Therefore, the doctrine of laches does not bar respondent's actions.

Petitioner's daughter, Melissa, is not a resident of respondent school district and is thereby not entitled to attend its schools on a tuition-free basis.



IN WITNESS WHEREOF, I, Richard P. Mills, Commissioner of Education of the State of New York, for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this day of August, 1997.



Commissioner of Education