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Decision No. 15,102

Appeal of MICHAEL J. CROWLEY, on behalf of his children MICHAEL and KRISTIN, from action of the Board of Education of the Bronxville Union Free School District regarding residency.



(August 23, 2004)


Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn, LLP, attorneys for respondent, John J. Hughes, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Bronxville Union Free School District ("respondent"), rendered January 25, 2002, which found that his children were not residents of the district during the first semester of the 2001-2002 school year.  The appeal must be dismissed.

The residency determination at issue in this appeal was the subject of a previous appeal brought by the children"s mother, Barbara J. Crowley, which was dismissed on February 5, 2004 (Appeal of Crowley, 43 Ed Dept Rep ____, Decision No. 15,025).  No judicial review of that determination has been sought.  The facts are stated in the previous decision, and will not be repeated here.

Petitioner claims that respondent"s residency determination, based upon a hearing conducted January 23, 2002, was not provided to him in writing within two business days, as required by Commissioner"s regulation "100.2(y).  He further claims that he first saw the residency decision in March 2002 (this is disputed by respondent), when he received it as an attachment to a letter dated March 25, 2002, from respondent"s counsel, demanding payment for tuition for the first semester of the 2001-2002 school year.  Petitioner claims that this procedure violated his rights, because he did not receive a copy of the residency determination until more than 30 days after the determination was made, and therefore received it after his time to appeal to the Commissioner had already expired.

Respondent contends that the appeal should be dismissed as untimely and under the doctrines of laches, collateral estoppel and resjudicata.  Respondent also objects to the submission of certain documents.  As to the merits, respondent maintains that it complied with the regulation and its decision is not arbitrary or capricious.

Petitioner"s basic premise is that respondent did not comply with the requirements of "100.2(y).  I find that respondent did comply.  The board"s determination letter dated January 25, 2002, which was timely sent to Barbara J. Crowley and admittedly received by her, misquotes the Commissioner"s regulation.  The January 25, 2002, letter, purporting to quote the regulation, states that "such board or its designee shall, within two business days, provide written notice of its determination to the child"s parents, to the person in parental relation to the child, or to the child, as appropriate."  In fact, the regulation states that "such board or its designee shall, within two business days provide written notice of its determination to the child"s parent . . . ." (emphasis added).  There is no question that such notice was timely sent to, and received by, Barbara J. Crowley, the parent who attended the hearing on January 23, 2002, and with whom both children lived.  Accordingly, I find that the procedure used by respondent complied with the regulation.

Even if a second notification were required, petitioner received the January 25, 2002, determination in March 2002.  Although an appeal commenced by him then would have been untimely, under Commissioner"s regulation "275.16, the Commissioner has the authority to excuse late commencement of an appeal "for good cause shown."  If service on petitioner had been required, and was made two months late, as he claims (this is disputed by respondent), a late appeal commenced within 30 days of his receipt of the determination might well have been excused because of the impossibility of commencing it earlier.  Here, however,  petitioner did not commence an appeal in March 2002, but instead waited until March 3, 2004, to commence this appeal.  Petitioner offers no excuse whatsoever for his inaction for nearly two years after receiving a copy of respondent"s determination.  While petitioner argues that his purported right to receive his own copy of the determination was violated in 2002, he apparently believes that such a violation allows him an unlimited time within which to commence an appeal.  There is no factual or logical reason for such a position.  Because he has offered no reason for waiting two years to commence this appeal, I find there is no basis upon which to exercise my discretion.

I note that neither the prior appeal by Barbara J. Crowley (commenced August 12, 2003), nor this appeal was commenced until after respondent sued Mr. and Mrs. Crowley and obtained a money judgment in Supreme Court, Westchester County, in June 2003 for tuition for the time period during which Barbara J. Crowley and the children were found not to be district residents.  It is evident that the purpose of this appeal is to undermine the underlying basis for the judgment of Supreme Court, Westchester County.  Any attack on that judgment must be made through the court system, not through an appeal to the Commissioner of Education.

In light of this disposition, I need not address any other issues raised in this appeal.