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Decision No. 15,280

Appeal of SHARMAINE JONES, on behalf of her son COREY DEWAR-JONES, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,280

(August 12, 2005)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

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

In September 2003, petitioner registered Corey in respondent's schools listing her residence as Newport Road, Uniondale, within the district. By letter dated April 20, 2005, the superintendent and the district's administrative assistant for central registration notified petitioner and her husband that Corey was not entitled to attend the district's schools because they did not reside within the district, and that he would be excluded from school effective May 6, 2005. The letter also offered petitioner and her husband an opportunity to present evidence of their residency.

Petitioner appealed and a registration review conference was held on May 16, 2005. At the conference, petitioner stated that she owns the home on Newport Road. However, petitioner also admitted that her primary residence, where she and Corey spend most of their time, is another home she owns on Imperial Drive, Baldwin, in the Baldwin Union Free School District.

By letter dated May 18, 2005, the review officer concluded that Corey did not reside in the district. This appeal ensued. Petitioner's request for interim relief was granted on June 15, 2005.

Petitioner asserts that she resides at both the in-district and Baldwin addresses. She alleges that Corey resides at the in-district address and at his father's home on Sheridan Place, Roosevelt, outside the district. She contends that she owns and pays taxes on both the in-district property and the property in Baldwin, and asserts that Corey intends to reside within the district until July 5, 2005. Respondent asserts that petitioner is residing outside the district.

The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). For relief, petitioner requested that her son be permitted to complete the 2004-2005 school year in respondent's district. Because the school year has ended and petitioner received the relief she sought through the interim order, the matter is moot and the appeal must be dismissed (Appeal of Welch, 44 Ed Dept Rep 57, Decision No. 15,097).

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent , 44 id. 81, Decision No. 15,105). The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101). Although petitioner pays taxes on two homes, she admitted that her primary residence where she spends most of her time is in Baldwin, outside the district. Accordingly, petitioner has failed to meet her burden of proof.

In light of this disposition, I need not address respondent's remaining arguments.