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Decision No. 15,027

Appeal of ELSA RUBIN, on behalf of ELA MELINA MARTINEZ, from action of the Board of Education of the Rye Neck Union Free School District regarding denial of admission.


(February 12, 2004)


Shaw & Perelson, LLP, attorneys for respondent, Marc E. Sharff, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Rye Neck Union Free School District ("respondent") that her niece, Ela Melina Martinez, is not a resident of the district and respondent"s refusal to admit her as a student.  The appeal must be dismissed.

Petitioner is the maternal aunt of Ela Melina Martinez.  Ela has lived with petitioner since July 2002, when petitioner and her husband lived in the Mamaroneck Union Free School District ("Mamaroneck").  In October 2003, petitioner, her husband and Ela moved to respondent"s district.

Petitioner states that her mother, who lives in the Bronx, has legal custody of Ela by reason of a court order issued approximately ten years ago.  (There is no copy of the order in the record.)  Despite that order, on August 9, 2002, Ela"s mother, Xiomara Martinez, executed an affidavit provided by Mamaroneck purporting to relinquish custody of Ela to petitioner "for 2 years starting July, 2002."  It appears that Ela attended school in Mamaroneck during the 2002-2003 school year, and continues to attend there.

Petitioner alleges that after her family moved to Rye Neck, she attempted to register Ela at the Rye Neck Middle School on October 26, 2003, but that admission was denied on October 27, 2003.  Petitioner commenced this appeal on January 24, 2004, and requests interim relief ordering Ela"s admission to the Rye Neck Middle School pending the resolution of this appeal.

Respondent contends that petitioner came to its district offices on November 5 and 14, 2003, to register Ela, at which times she provided some requested information but never completed a Rye Neck custodial affidavit which would establish petitioner"s custody and control of Ela, or, in the alternative, a court order granting petitioner custody of Ela.  Respondent maintains that petitioner never revealed that Ela"s grandmother had court-ordered custody.  Respondent further states categorically that petitioner never completed the registration process, and that no denial was ever made, oral or written.  No written determination regarding admission appears in the record before me.

The appeal must be dismissed as premature.  I find that the materials submitted by petitioner to respondent are incomplete.  A copy of the August 9, 2002 affidavit, originally submitted to Mamaroneck, and later submitted to respondent, appears to have been modified.  (Two versions of the affidavit are contained in the record.)  I further find that respondent has made no residency determination, making this appeal premature (cf., Appeal of a Student With a Disability, 40 Ed Dept Rep 145, Decision No. 14,443; Appeal of Lilly, 39 id. 601, Decision No. 14,324).  Because the materials presented to respondent are so incomplete, I find that dismissal is more appropriate than a remand (cf., Appeal of Agoney and Cook, 38 Ed Dept Rep 75, Decision No. 13,986; Appeal of Yattaw, 38 id. 12, Decision No. 13,973).

Although the appeal must be dismissed as premature, it is dismissed without prejudice to petitioner.  Petitioner may make a new application for Ela"s admission to the district at any time, and, if such application is made,
respondent is obligated to make a determination of residency pursuant to "100.2(y) of the Commissioner"s regulations, expeditiously.