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Decision No. 14,697

Appeal of MICHELLE MALEK, on behalf of her daughter SHAYLEE, from action of the Board of Education of the Avon Central School District regarding residency.

Decision No. 14,697

(March 12, 2002)


Harris Beach, LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Avon Central School District ("respondent") that her daughter, Shaylee, is not a district resident. The appeal must be dismissed.

Petitioner attempted to enroll her daughter in respondent's schools at the beginning of the 2001-2002 school year. By letter dated September 6, 2001, respondent"s director of pupil services denied Shaylee admission based on his determination that she was not a district resident. Petitioner's request for interim relief was denied on October 30, 2001.

Petitioner requests a determination that Shaylee is a resident of respondent's district. Respondent asserts that Shaylee is not a district resident and that the appeal is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of Marbury, 41 Ed Dept Rep __, Decision No. 14,634; Appeal of Lucente, 39 id. 244, Decision No. 14,227). The record does not disclose the exact date that Ms. Malek received the September 6, 2001 letter. There is, therefore, no evidence in the record that the petition is in fact late, and the appeal was filed on October 10, 2001, within 30 days of the five days usually allowed for mail delivery in the absence of proof of the date of actual delivery (Appeal of Marbury, supra; Appeal of Spensieri, 40 Ed Dept Rep __, Decision No. 14,419; Appeal of D.H., 39 id. 721, Decision No. 14,360). Therefore, I will not dismiss the appeal as untimely.

The appeal, however, must 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 guardians reside within the district (Appeal of Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603; Appeal of Davis, 39 id. 181, Decision No. 14,207). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Gentile, 39 id. 23, Decision No. 14,161). A student's residence is presumed to be that of his or her parents or legal guardians (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177). This presumption may be rebutted upon a showing that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Donohue, supra; Appeal of Weaver, supra; Appeal of Mendoza, 39 Ed Dept Rep 74, Decision No. 14,178). Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Marbury, supra; Appeal of Epps, 39 Ed Dept Rep 778, Decision No. 14,377).

Petitioner admits in her petition that she and Shaylee live outside respondent's district. Petitioner also states that she attempted to temporarily transfer custody of Shaylee to two residents of respondent's district, but does not provide any evidence of such transfer. Respondent submits an affidavit of petitioner that clearly indicates an attempt by petitioner to transfer custody solely for the purpose of allowing Shaylee to attend respondent's schools.

Accordingly, on the record before me, I find that respondent's determination was not arbitrary, capricious or unreasonable and should not be set aside.




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