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Decision No. 14,767

Appeal of M.S., on behalf of his grandson R.D., from action of the Board of Education of the Onteora Central School District regarding residency.

Decision No. 14,767

(August 2, 2002)

Laura G. Shulman, Esq., attorney for petitioner

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Onteora Central School District ("respondent") that his grandson, R.D., is not a district resident. The appeal must be dismissed.

Petitioner resides within respondent's district. R.D. has been living with him since November 9, 2001 and began attending respondent's high school on December 6, 2001. R.D.'s mother lives in New Jersey, and his father is deceased. By letter dated February 27, 2002, respondent's residency officer advised petitioner of his determination that R.D. was not a district resident. This appeal ensued. Petitioner's request for interim relief was granted on March 15, 2002.

Petitioner asserts that he supports and exercises control over R.D. who resides with him in respondent's district. Respondent asserts that R.D. is living with petitioner temporarily and that the child's mother has not permanently relinquished his care, custody and control.

As a threshold matter, petitioner"s reply contains additional allegations not set forth in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Huber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. 459, Decision No. 14,527; Appeal of Taylor, 39 id. 712, Decision No. 14,357). Therefore, while I have reviewed petitioner"s submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 Silvestro, 40 id. 259, Decision No. 14,476; 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 guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Santana, 40 id. 57, Decision No. 14,420; Appeal of Williams, 39 id. 73, Decision No. 14,177). This presumption may be rebutted upon a determination 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 Santana, supra; Appeal of Mendoza, 39 Ed Dept Rep 74, Decision No. 14,178).

R.D. began living with his grandparents after he was suspended from a New Jersey high school. Although petitioner agreed to support and exercise control over his grandson's activities, R.D.'s mother did not surrender parental control over R.D. The record further indicates that R.D.'s mother was forced to sell her residence, and that she was going to stay with friends until she moved to a different New Jersey city in June 2002. Respondent's conclusion that there has not been a total and permanent transfer of custody and control to petitioner is supported by the transitory reasons for R.D.'s living arrangement in New York. Under the circumstances presented in this record, I do not find respondent"s determination that R.D. is not a district resident arbitrary or capricious.