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Decision No. 14,835

Appeal of BARBARA VORWERK CROSIER, on behalf of her daughter CLAIRE, from action of the Board of Education of the Berne-Knox-Westerlo Central School District regarding transportation.


Decision No. 14,835


(January 31, 2003)


Whiteman Osterman & Hanna LLP, attorneys for respondent, Beth A. Bourassa, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Berne-Knox-Westerlo Central School District ("respondent") denying her request for transportation of her daughter, Claire, to a nonpublic school.  The appeal must be dismissed.

On April 2, 2001, petitioner submitted a written request for Claire"s transportation to the Academy of Holy Names, a nonpublic school, for the 2001-02 school year.  In her request, petitioner listed an address on Filkins Hill Road.  By letter dated April 9, 2001, petitioner amended her request to seek transportation from "the residence that we own" on Helderberg Trail.  Respondent denied her request because petitioner"s home on Filkins Hill Road is more than 15 miles from the nonpublic school.  Respondent further informed petitioner that the Helderberg Trail property was not relevant unless Claire resided there.

On April 1, 2002, petitioner requested transportation for Claire to the Academy of Holy Names for the 2002-03 school year.  She listed the Helderberg Trail property as her home address.  By letter dated April 17, 2002, respondent"s superintendent denied petitioner"s transportation request on the ground that petitioner"s Filkins Hill Road address is more than 15 miles from the nonpublic school. The superintendent disregarded the Helderberg Trail address because he did not believe petitioner resided there.

On June 17, 2002, petitioner appealed to respondent. On appeal, petitioner attempted to prove her residency at the Helderberg Trail address by asserting that she paid for utilities there.  She also stated that she registered to vote using that address, paid school and property taxes on the property and listed the Helderberg Trail residence as her legal address on her bank account.  By letter dated June 24, 2002, respondent upheld the decision denying petitioner"s transportation request.  This appeal ensued.

Petitioner maintains that she and Claire reside at the Helderberg Trail address. Petitioner also contends that respondent denied her transportation request in retribution for several past events.

Respondent contends that petitioner and Claire do not live at Helderberg Trail, but instead live at Filkins Hill Road with petitioner"s husband.  Respondent maintains that its transportation decision was based solely on the fact that petitioner"s home is more than 15 miles from the nonpublic school and denies any retaliation.  Respondent also submits an affidavit from a member of the Berne-Knox-Westerlo Board of Education, who is also petitioner"s sister-in-law, contending that petitioner does not reside on Helderberg Trail but instead resides with her husband and Claire on Filkins Hill Road.

At the outset, I note that petitioner"s reply contains new 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 a Student with a Disability and his Sister, 42 Ed Dept Rep ___, Decision No. 14,821; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676).  Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new  material or affirmative defenses set forth in the answer.  Likewise, I have not considered petitioner"s belated submission of additional exhibits containing allegations that were not set forth in the petition.

Education Law "3635(1) establishes a dual system of entitlement to transportation services to nonpublic schools.  Transportation must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation.  Section 3635(1) requires the Board of Education of a school district to provide transportation for elementary school pupils between home and school for distances between 2 and 15 miles and for secondary school students, between 3 and 15 miles.  Here, the parties disagree about the location of the student"s home.  While petitioner contends it is on Helderberg Trail, respondent contends that the residence is on Filkins Hill Road.

A child"s residence is presumed to be that of his parents or legal guardians (Appeal of O"Herron, 40 Ed Dept Rep 204, Decision No. 14,461; Appeal of Bogetti, 38 id. 199, Decision No. 14,014).  Where a child"s parents live apart, the child can have only one legal residence (Appeal of Dickinson, 39 Ed Dept Rep 41, Decision No. 14,168; Appeal of Plesko, 37 id. 238, Decision No. 13,850).  For purposes of Education Law "3202, a person can have only one residence.  A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Scaffa, 40 Ed Dept Rep 177, Decision No. 14,453).  Further, ownership of property in a school district does not confer residency status (Appeal of O"Herron, supra; Appeal of Felenczak, 39 Ed Dept Rep 125, Decision No. 14,191). 

In an appeal to the Commissioner, petitioner has the burden to demonstrate a clear legal right to the relief requested and to establish the facts upon which petitioner seeks such relief (8 NYCRR "275.10; Appeal of Dickinson, supra; Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994).  Here, petitioner has failed to demonstrate that her residence is within the 15-mile limit as required by statute. The submission of an 8 year-old voter registration card, telephone number, utility and bank account numbers merely support petitioner"s claim that she owns the Helderberg Trail property and that she may have previously lived there.  The record, however, does not support petitioner"s claim that she and her daughter currently reside at Helderberg Trail.  It indicates that petitioner amended her first transportation request to list the Helderberg Trail address without stating that she actually lived there.

  Further, petitioner has failed to prove that Helderberg Trail is Claire"s only legal residence.  In fact, petitioner states that Claire lives with both her and her husband at the two residences.  However, petitioner does not state that she and her husband are divorced or separated, nor does she provide any schedule of when Claire lives with each parent.  Petitioner also fails to explain why she contends that Claire lives at both homes while her husband submits a letter declaring that Claire lives at Helderberg Trail.

Based on the record before me, petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that Claire does not reside at  Helderberg Trail, and therefore, is not entitled to transportation to the nonpublic school.  Accordingly, respondent"s determination will not be set aside.