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Decision No. 14,545

Appeal of GREGORY GREEN, on behalf of SADE and SHAKHYRY GREEN, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 14,545

(March 14, 2001)

McGuire, Kehl & Nealon, LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that his children Sade and Shakhyry are not district residents. The appeal must be dismissed.

Petitioner enrolled his children in respondent"s schools in January 2000. He asserted that he and the children lived with his mother at 81 Rockland Place, New Rochelle, within the district. Nadine Wallace, a board of education member, lives at 61 Rockland Place. On several occasions during October 2000, she saw petitioner"s children exit a car in front of 81 Rockland Place and walk to two nearby school bus stops. She noted that each weekday morning from October 23 through 27, the same car arrived at 81 Rockland Place. The children got out and, without entering their grandmother's house, walked to the bus stops. Ms. Wallace reported the situation to respondent"s superintendent on October 27, 2000.

Upon being informed of Ms. Wallace"s observations, Carol Feldman, the district"s Director of Pupil Services, checked Sade and Shakhyry"s records. She noticed that petitioner had provided an emergency phone number with a Mount Vernon exchange. She called Verizon information and requested a listing for petitioner. She was given the same phone number petitioner listed for emergency use and was advised that the listing was for a residence at 617 South Sixth Avenue in Mount Vernon, outside respondent"s district. On October 30, 2000, Richard Boddie, a district attendance officer, observed a man and two children leave 617 South Sixth Avenue in Mount Vernon and drive to Rockland Place, where the children exited the car and walked to school bus stops.

On October 27, 2000, Ms. Feldman sent a letter to petitioner stating that she had been informed that petitioner and his children were not district residents and inviting petitioner to submit information regarding their residence by November 3, 2000. On that date, petitioner and his mother met with Ms. Feldman at her office. Petitioner acknowledged that he has an older son who lives at the Mount Vernon address and stated that Sade and Shakhyry visit there on weekends and during the week. Petitioner submitted two pieces of mail directed to him at the Rockland Place address. He also submitted a library card, hospital card and custody order, none of which listed his home address.

By letter dated November 7, 2000, Ms. Feldman informed petitioner of respondent"s determination that he did not reside in the district. This appeal ensued. Petitioner"s request for interim relief was denied on January 10, 2001.

Petitioner states that Shakhyry and Sade reside with him at his mother"s home, 81 Rockland Place. He claims that they have lived at that address for one year and plan to reside there indefinitely. He requests a determination that the children are district residents who may attend New Rochelle schools without paying tuition.

Respondent contends that petitioner and his children are not district residents, asserts that evidence in the record establishes that they reside in Mount Vernon and claims that its residency determination is neither arbitrary nor capricious and must be upheld.

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 guardians reside within the district (Appeal of Whitfield, 40 Ed Dept Rep ___, Decision No. 14,412; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). Residency, for purposes of Education Law "3202, is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Whitfield, supra, Appeal of Dimbo, supra).

Other than his bare assertion that he and his children reside within the district, petitioner offers nothing to rebut respondent"s evidence. I therefore find respondent"s determination to be neither arbitrary and capricious nor unreasonable. Accordingly, it will not be set aside (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Digilio, 37 id. 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).