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Decision No. 15,096

Appeal of G.P., on behalf of her son U.P., from action of the Board of Education of the Sag Harbor Union Free School District regarding residency.


Decision No. 15,096


(August 13, 2004)


Bracken, Margolin & Gouvis, LLP, attorneys for petitioner, Linda U. Margolin, Esq., of counsel


Guercio & Guercio, attorneys for respondent, Christine LaPlace, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sag Harbor Union Free School District ("respondent") that her son, U.P., is not a district resident.  The appeal must be sustained.

Petitioner registered her son with respondent"s district in September 2001.  Based on her representation that she and her husband were building a home on Harry"s Lane in the district, respondent permitted U.P. to attend kindergarten during the 2001-2002 school year.

In September 2002, the district apparently questioned whether the family had moved into the Harry"s Lane residence.  By letter dated September 8, 2002, petitioner"s husband advised the district that the house was in the "final stages" of construction and that he estimated that the family would move in within three months.  Although respondent"s superintendent subsequently advised petitioner and her husband that respondent would not permit U.P. to attend the district"s schools under these circumstances, respondent continued to allow U.P. to attend school tuition free during the 2002-2003 school year.

At some point during the 2003-2004 school year, respondent hired an investigator, who conducted surveillance on multiple days between March 11 and April 20, 2004 at the Harry"s Lane address as well as the Bel-Aire Cove Motel ("the motel") in Hampton Bays, which petitioner"s husband owns and manages, and where respondent apparently suspected petitioner"s family of living.  The investigator advised the district that the Harry"s Lane residence was still under construction and that petitioner and her family did not live there.

By letter dated April 14, 2004, the superintendent invited petitioner and her husband to attend an April 16, 2004 "meeting" pursuant to "100.2(y) of the Commissioner"s regulations where she would determine whether U.P. was a district resident.  Petitioner"s husband appeared at the meeting and requested a postponement until April 20, 2004 to allow him to retain counsel.  Although the request was granted, neither petitioner nor her husband appeared at the April 20, 2004 proceeding, which was conducted in their absence.

By decision dated April 21, 2004 and hand-delivered to petitioner and her husband, the superintendent determined that U.P. is not a district resident based on the investigative evidence that the Harry"s Lane house was still under construction and "uninhabitable" and that during the period of surveillance, petitioner"s family was not seen at the house on "weekends or evening hours."  The superintendent further informed U.P."s parents that the child would be excluded from the district"s schools after April 23, 2004.  This appeal ensued.  Petitioner"s request for interim relief was granted on May 7, 2004.

In support of her residency claim, petitioner explains that her husband has personally performed most of the construction work on the Harry"s Lane house and that from December 2002 through the end of the summer of 2003, he was unable to work on the house as much as anticipated because of petitioner"s diagnosis and treatment for a serious illness.  Petitioner maintains, however, that the family moved into the house at the beginning of the 2003-2004 school year so that U.P. could continue to attend respondent"s schools, notwithstanding that the town had not yet issued a certificate of occupancy.  Petitioner claims that although the kitchen was unfinished at that time, the house had water, heat, electricity and working bathrooms.  She explains that the family essentially uses only the second floor of the house, temporarily placing a kitchen table and chairs, microwave and refrigerator in one of the bedrooms and using a bathroom sink to wash dishes.  Petitioner also submits photographs to document these arrangements.

Petitioner further maintains that although the family generally sleeps in the Harry"s Lane home, her husband picks up U.P. after school and brings him to the motel, where petitioner often meets them after finishing work at 7:00 p.m.  Depending on her husband"s work schedule, the family sometimes does not return to Harry"s Lane until 10:00 p.m.  Further, because her husband generally works through the night on Fridays and Saturdays, petitioner and her son visit him at the motel on weekends.

Respondent contends that it properly determined that petitioner"s son is not a district resident based on the investigator"s surveillance evidence and petitioner"s failure to submit any evidence to support her residency claim.  Respondent also contends that I should not consider any evidence submitted by petitioner that was not presented to respondent at the residency hearing.

Preliminarily, I will address respondent"s procedural claims.   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 General, 43 Ed Dept Rep    , Decision No. 14,948).  I will accept petitioner"s reply papers because I find that, in large measure, the allegations and exhibits are responsive to new material or affirmative defenses raised by respondent in its answer.  I will also accept, pursuant to "276.5 of the Commissioner"s regulations, the affidavit submitted by respondent with a letter dated July 6, 2004 responding to information contained in petitioner"s reply papers.

     Respondent also objects to the documentary evidence submitted by petitioner to support her residency claim on the grounds that it was not presented at the residency hearing.  Petitioner explains that the April 14, 2004 letter informing her and her husband of the April 16, 2004 "meeting" advised them that any information they wished to submit "must be received no later than April 15, 2004" and that she and her husband were not able to gather the necessary documentation in this short timeframe.  Further, based on the superintendent"s letter, petitioner"s husband did not realize, until he arrived at the appointed time, that the superintendent intended to conduct a hearing, which prompted petitioner"s husband"s request for an adjournment to retain counsel.  Petitioner further explains that the superintendent would only postpone the hearing to the following Tuesday, April 20, 2004, that she and her husband were unable to find a lawyer by then, were "scared" to attend the hearing without counsel, and did not ask for a further extension because "the superintendent had already said this was the last date she would give us."  Under these circumstances, and in light of the fact that respondent has had an opportunity to respond to petitioner"s submission, I will accept petitioner"s evidence (see, Appeal of Short, 43 Ed Dept Rep ___, Decision No. 14,945).

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 Marshall, 43 Ed Dept Rep _ _, Decision No. 14,911; Appeal of B.O. and D.O., 42 id. 42, Decision No. 14,769). Residence for purposes of Education Law "3202 is established by one"s physical presence as an inhabitant within the district combined with an intent to remain in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Marshall, supra; Appeal of B.O. and D.O., supra). For purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Marshall, supra).  Mere ownership of property in a school district does not confer residency status (Appeal of Rosen 43 Ed Dept Rep    , Decision 14,929; Appeal of Felenczak, 39 id. 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

There does not appear to be any dispute that petitioner and her husband own property on Harry"s Lane and are constructing a house there that they intend to occupy as their primary residence.  There is some dispute as to whether the house is substantially complete, as petitioner contends, or "uninhabitable," as respondent contends.  However, pending home construction, in and of itself, does not establish residency (Appeal of Sobel, 43 Ed Dept Rep ___, Decision No. 14,931; See, Appeal of Embler and Schwerbel, 40 Ed Dept Rep 17, Decision No. 14,406; Appeal of Duhaney, supra).  Petitioner must establish that her family actually resides in the house.

Respondent"s investigator conducted surveillance at the Harry"s Lane address on approximately 19 days between March 11 and April 20, 2004.  On most of these occasions, the investigator arrived at the home early in the morning, generally between 5:15 a.m. and 6:30 a.m.  On 14 of those occasions, the investigator observed at least one vehicle parked in the driveway.  On seven occasions, he observed either a truck registered to petitioner"s husband or a sport utility vehicle ("SUV") registered to petitioner"s mother-in-law.  On the remaining seven occasions, both of these vehicles were present.  Although respondent"s investigator states that he never observed petitioner or her son at the Harry"s Lane address, it appears that on the days there was at least one car parked at the house in the early morning, he did not remain at the residence for any length of time to see whether anyone might leave for work or school.

Further, although the investigator also reported seeing a car registered to petitioner parked at the motel on a number of occasions during the surveillance period, petitioner explains that she does not use this car during the winter months because it performs poorly in the snow, and instead, uses her mother-in-law"s SUV, and that she continued to use the SUV in March and April 2004. 

Although respondent"s investigator apparently testified at the hearing that the house "appeared to be uninhabitable," his surveillance photographs suggest otherwise.  Although the photographs reflect that the property has no lawn or landscaping, the exterior of the house appears to be substantially, if not entirely, finished.  Further, while a photograph of a portion of the first floor interior, apparently taken through a window, reveals what appears to be a stack of lumber on the floor, the interior appears substantially complete.  Moreover, the investigator did not photograph the second floor, where petitioner claims the family is living.

Based on all the facts and circumstances, I find that petitioner has sustained her burden of establishing residency.  Contrary to respondent"s assertion, I do not find respondent"s surveillance evidence persuasive proof that petitioner and her family do not reside at the Harry"s Lane residence.  To the contrary, the proof is largely consistent with petitioner"s claim that the family stays on the second floor of the home, but often does not arrive home until 10:00 p.m.  The evidence establishes that the investigator observed either one or two of the vehicles used by petitioner and her husband parked in the driveway on most mornings when he conducted surveillance.  Further, it is not surprising that the investigator did not observe activity at the house because, for the most part, his observations were made very early in the morning when petitioner and her family would likely still be sleeping.  The investigator"s more limited surveillance at other times during the weekdays or on the weekend, revealing no activity at the house, are consistent with petitioner"s assertions that she and her husband both work during the day, that she often spends time in the evening with her husband and son at the motel that he manages, and that the family spends time over the weekend either at the motel or visiting relatives.

In sum, I find insufficient evidence in the record to support respondent"s determination that petitioner is not a district resident.  Even if I were to disregard the additional evidence submitted by petitioner, I would reach the same conclusion.