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Decision No. 14,779

Appeal of KERRY PEREZ, on behalf of her daughter DANIELLE, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 14,779

(August 21, 2002)

Guercio & Guercio, attorneys for respondent, Richard J. Guercio and Randy Glasser, Esqs., of counsel

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

In November 2001, district officials apparently became aware that petitioner was renting an apartment on Roosevelt Place, Massapequa, within the district, but was staying there with Danielle only Sunday through Thursday nights. On or about November 2, 2001, the district"s assistant superintendent for business conducted a search of New York State Department of Motor Vehicles records and discovered that petitioner"s driver"s license listed an address on Roosevelt Boulevard, also in Massapequa but within the Amityville Union Free School District ("Amityville address"). The records check also revealed a registration for petitioner"s car at the Amityville address.

By letter dated November 6, 2001, the superintendent notified petitioner that he intended to hold a hearing on November 19, 2001 to determine whether petitioner and Danielle were district residents. The superintendent also invited petitioner to submit evidence in advance of the hearing to demonstrate her residence within the district. Petitioner did not appear at the hearing or submit any evidence.

The superintendent and the assistant superintendent for business aver that during several discussions with petitioner, she admitted that she sleeps at the Roosevelt Place apartment Sunday through Thursday nights for the sole purpose of enabling her daughter to attend the district"s schools. They also aver that petitioner admitted that she owns the home at the Amityville address with her husband, that she returns to that home during the day Sunday through Thursday, and that she and her daughter return to that home Friday through Sunday nights.

Based on these admissions and the Motor Vehicle records, the superintendent determined that petitioner and Danielle were not district residents. By letter addressed to petitioner and her husband at the Amityville address, the superintendent notified petitioner on December 10, 2001, of his determination that she was not a district resident and would need to withdraw Danielle from Massapequa High School on December 21, 2001.

On December 18, 2001, petitioner submitted a "Renter"s/Non-Owner"s Affidavit," which stated that commencing September 1998, she had rented an upstairs apartment at the Roosevelt Place address within the district on a month-to-month basis for $300 per month. After reviewing this form, the superintendent, by letter dated December 20, 2002 and sent to the Amityville address, again informed petitioner of his determination that she was not a district resident, and that Danielle could no longer attend school in the district effective January 25, 2002, the last day of the first semester. This appeal ensued on February 12, 2002. Petitioner"s request for interim relief was denied on March 5, 2002.

Petitioner maintains that she is a district resident and that Danielle should be allowed to attend respondent"s high school without the payment of tuition. Petitioner states that 3" years ago, when the house she rented in the district was sold, she had to move back to the Amityville district. She asserts that at the time, she consulted the former superintendent who advised her that if she rented an apartment in the district and slept there with her children, her children could remain in the district schools. Petitioner maintains that the current superintendent was aware of her rental situation and had acquiesced until November 2001.

Respondent asserts that the petition is untimely, unverified, and fails to establish that petitioner or Danielle are district residents. Respondent also asserts that it has no knowledge or documentary evidence of any arrangement between petitioner and the former superintendent that permitted Danielle to attend the schools of the district tuition-free.

I must first address several procedural issues. On March 11, 2002, petitioner faxed a letter with exhibits to my Counsel"s Office, with no affidavit of service. Since the letter and exhibits do not comply with the verification and service requirements for a reply (8 NYCRR ""275.5 and 275.14), I have not considered them in this appeal.

The petition must be dismissed for lack of proper verification. Section 275.5 of the Commissioner"s Regulations requires that all pleadings in an appeal before the Commissioner be verified. The petition must be verified by the oath of the petitioner. Here, petitioner failed to verify the petition. Where a petition is not properly verified, it must be dismissed (Appeal of Booker, 40 Ed Dept Rep 447, Decision No. 14,523; Appeal of Phillips, 40 id. 241, Decision No. 14,471).

The appeal must also be dismissed as untimely. An appeal to the Commissioner pursuant to Education Law "310 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). Respondent notified petitioner of its determination by letters dated December 10 and 20, 2001, yet petitioner did not commence her appeal until February 12, 2002, some two months later. Petitioner does not offer any excuse or explanation for her late filing. Consequently, the appeal must be dismissed as untimely.

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 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 Lapidus, 40 id. 21, Decision No. 14,408). A student"s residence is presumed to be that of his or her parent or legal guardian (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). For purposes of Education Law "3202, a person can only have one legal residence (Appeal of O'Herron, 41 Ed Dept Rep ___, Decision No. 14,591; Appeal of LaQuerre, 40 id. 565, Decision No. 14,558; Appeal of Embler, 40 id. 17, Decision No. 14,406). If a person owns or rents property both within and outside the school district, only one property can be considered one's "legal residence" (seeAppeal of Reynolds, 41 Ed Dept Rep ___, Decision No. 14,604; Appeal of Scaffa, 40 id. 177, Decision No. 14,453).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of James, 41 Ed Dept Rep ___, Decision No. 14,752). Although petitioner provides some evidence that she rents an apartment in the district, she has not met her burden of demonstrating a clear legal right to the relief requested and of establishing the facts upon which relief is sought (Appeal of James, supra; Appeal of O'Herron, supra; Appeal of LaQuerre, supra). Petitioner admits that she is not at the district address on most days or on weekends. In addition, respondent produced a deed for the Amityville address listing petitioner and her husband as owners, and the registration for a 1993 Mercury automobile and petitioner"s driver"s license, both with that address. Accordingly, based on the record before me, I cannot conclude that respondent"s decision was irrational.

I further note that even if Danielle had previously been permitted to attend the schools of the district, that does not bind respondent and does not provide a basis for continuing such action if petitioner is not a district resident. Even if petitioner had presented evidence of a prior arrangement with the former superintendent, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of Holzer, et al., 37 Ed Dept Rep 549, Decision No. 13,924; Appeal of Prospero, 37 id. 62, Decision No. 13,804).

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on Danielle"s behalf at any time and to present any new information for respondent"s consideration (Appeal of Santoianni, 40 Ed Dept Rep 237, Decision No. 14,470; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180).