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Decision No. 14,445

Appeal of DEBRA BRYAN, on behalf of KIMBERLY and MATTHEW BRYAN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 14,445

(August 28, 2000)

Ingerman Smith LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her children are not residents of the district and, therefore, are not entitled to attend its public schools. The appeal must be dismissed.

Petitioner resides at 174 North 26th Street, Wheatley, which is not within respondent’s school district ("district"). Petitioner had formerly resided within the district but moved to the Wheatley address, located in the Wyandanch Union Free School District, sometime prior to September 1999. Respondent was not aware of petitioner’s change of address until February 2000 when petitioner provided district staff with a new home telephone number listed at the Wheatley address. In addition, in August 1999, petitioner signed a request for the transfer of another son’s records to the Wyandanch school district.

By letter dated February 17, 2000, respondent’s superintendent of schools notified petitioner of the determination that she and her children no longer resided in respondent’s district. Pursuant to 8 NYCRR "100.2(y), petitioner was afforded an opportunity to present information to prove her residency in the district. At that time, petitioner asserted that she had moved back into the district and was temporarily living with a friend at 219 Rutland Road within respondent’s district. Respondent conducted surveillance on five different dates. On March 30, 31 and April 3, 2000 surveillance of the Rutland Road address from 6:00 a.m. to 8:30 a.m. indicated individuals other than petitioner and her children left that residence. Petitioner and her children were not observed at that address. On April 5 and 7, 2000, petitioner and her children were observed leaving the Wheatley address in the Wyandanch school district at approximately 7:00 a.m.

By letter dated April 11, 2000, respondent’s superintendent notified petitioner that her children would be excluded from school in respondent’s district on May 5, 2000, based upon a determination that they do not reside in the district. This appeal ensued. As part of her appeal, petitioner requested an interim order directing respondent to permit her children to attend school in the district pending a determination on the merits of the appeal. In view of the minimal time remaining in the school year, such interim relief was granted on May 18, 2000.

In her petition, petitioner admits that she does not reside in respondent’s district. She admits that she lives at 174 North 26th Street in Wheatley, but asserts that she will be moving to respondent’s district as soon as she is able to locate affordable housing. Throughout her petition, she asks that her children be permitted to complete the 1999-2000 school year in respondent’s district. Respondent contends that the appeal should be dismissed because petitioner is not a district resident.

The appeal must be dismissed as moot. It is well settled that the Commissioner will only consider 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 (Appeal of DeLaTorre, 39 Ed Dept Rep ___, Decision No. 14,397; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). Petitioner’s request that her children be permitted to complete the 1999-2000 school year in respondent’s district was granted by the Commissioner’s May 18, 2000 interim order. As the school year has ended, no further meaningful relief can be granted.

The appeal must also be dismissed on the merits. 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 to students whose parents or legal guardian reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Residence is acquired by one’s physical presence with an intent to remain (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Gannon, 37 id. 135, Decision No. 13,823). In her pleadings petitioner admits that she and her children are actually living at 174 North 26th Street, outside respondent’s district. The surveillance report relied on by respondent also established petitioner’s residence at that address. Consequently, respondent’s determination that her children may not attend its schools was not arbitrary, capricious or unreasonable and will not be set aside.