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Decision No. 14,404

Appeal of MICHAEL MARINO, on behalf of MICHAEL MARINO, JR., from action of the Board of Education of the Valhalla Union Free School District regarding the denial of admission on the basis of residency.

Decision No. 14,404

(July 19, 2000)

Shaw & Perelson, LLP, Margo May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valhalla Union Free School District ("respondent") that his son is not a resident of the district. The appeal must be dismissed.

In September 1999, petitioner registered his son in respondent's district and indicated on the registration form that they were living at an address within the district. After receiving information in October 1999 that petitioner and his son did not reside within respondent's district, respondent's superintendent of schools obtained authorization from respondent to hire a private investigator to determine the residence of petitioner and his son. The investigator's report indicated that petitioner and his son did not reside at the address petitioner had provided in the registration form, but instead resided at an address in Bronx, New York.

On November 19, 1999, the superintendent sent a letter to petitioner indicating that in light of the evidence presented to his office, petitioner's son was determined to be a non-resident of respondent's district and that the student would be permitted to attend respondent's high school only through December 3, 1999. The letter advised petitioner that he was entitled to present a written response to the superintendent no later than November 30, 1999.

In a letter to respondent, dated November 21, 1999, petitioner indicated that he intended to move to an address within respondent's district but that a proposed sale of his house in the Bronx did not occur and that his son is residing with petitioner's cousin at an address in respondent's district. Petitioner requested that his son be allowed to continue to attend respondent's high school. Thereafter, petitioner held several additional discussions with respondent’s superintendent on this issue.

By letter dated, December 8, 1999, the superintendent informed petitioner that after reviewing the information submitted by petitioner and all other available information, he determined that petitioner's son was not a resident of respondent's district and that the student would be excluded from attending respondent's schools, effective January 3, 2000, with the student's last day of attendance being December 22, 1999.

Petitioner commenced this appeal through service of a copy of the petition on respondent's superintendent on January 20, 2000. Petitioner alleges that his son resides with Cindy Mann, as the student's "temporary guardian", at an address located within respondent's district. Petitioner alleges that he plans to move to respondent's district upon the sale of his house in the Bronx. Petitioner requests a determination that his son is a district resident and entitled to attend district schools without the payment of tuition.

Petitioner also requested interim relief permitting his son to continue to attend respondent's schools pending a final determination of his appeal. However, it became unnecessary for me to determine petitioner's interim relief request after respondent indicated that it would permit petitioner’s son to continue in attendance until a final determination of this appeal.

Respondent denies petitioner's allegations and contends that the appeal should be dismissed for petitioner's failure to meet his burden of proof. Respondent also contends that the appeal should be dismissed as moot because petitioner has subsequently established residency within the district and his son is now in attendance at respondent's high school. Respondent also requests that petitioner be required to remit tuition to the district for the period of time petitioner's son has attended respondent's schools while not a resident.

The record indicates that on January 21, 2000, petitioner provided respondent with a copy of an executed lease agreement for premises located within respondent's district, as well as a utility bill for such premises, and petitioner's son was permitted to re-register in the district and has been in attendance since that date. Although a letter dated January 25, 2000 from the superintendent to petitioner states that the student will be allowed to remain in attendance "pending verification of your physical occupancy at the address noted on the executed lease", there is nothing in the record to indicate that petitioner's son was subsequently determined not to reside at such address. Therefore, the dispute concerning the student's residency no longer exists. Since the Commissioner of Education only decides matters which are in actual controversy and will not render a decision upon facts which no longer exists or which subsequent events have laid to rest, the appeal must be dismissed (Appeal of Polovsky, 38 Ed Dept Rep 230, Decision No. 14,022).

With respect to respondent's request that petitioner be required to remit tuition to the district for the period petitioner's son allegedly attended respondent's schools while not a resident, the Commissioner of Education does not have any statutory authority to make a finding awarding student tuition (Application of Pierrelus, 37 Ed Dept Rep 502, Decision No. 13,913). Respondent may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction (Bd. of Educ. of Lawrence Union Free School District v. Gaffney, 233 AD2d 357; Application of Pierrelus, supra).