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Decision No. 15,284

Appeal of JOHN ZAPAS, on behalf of his son STEVEN, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,284

(August 17, 2005)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel


AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that his son, Steven, is not a district resident. The appeal must be dismissed.

In August 2003, petitioner registered Steven to attend high school in respondent's district. Petitioner stated on the registration form that both he and Steven's mother resided in New Hyde Park, within the district. In March 2004, the district questioned Steven' s residence after an assistant principal observed petitioner driving from New York City one morning with Steven and dropping him off at school. On another occasion, the district received a telephone call from a Brooklyn telephone number listed under petitioner's name, reporting Steven absent from school. An assistant principal and an attendance teacher visited the New Hyde Park address and reported to the district' s attendance supervisor that the house was deserted.

By letter dated March 31, 2004, petitioner was notified of the preliminary determination that Steven was not a district resident and informed that he could appeal to respondent's designee for residency determinations. By letter dated April 14, 2004, petitioner appealed, and on April 20, 2004, respondent's designee conducted a residency hearing.

At the hearing, petitioner testified that he and Steven had been living in the house at the New Hyde Park address for approximately one year. Petitioner indicated that, prior to that time, he and Steven lived in Brooklyn with Steven's mother and other siblings. Petitioner stated that he owns two businesses and that one, Pacific Plumbing, owns the Brooklyn property, while the other, Salma Construction, owns the New Hyde Park property. Petitioner also testified that Steven's mother still lives at the Brooklyn address. Petitioner stated that he frequently leaves Steven with his mother in Brooklyn when petitioner works or visits his girlfriend in New Jersey overnight.

Regarding the habitability of the house, petitioner indicated that he was renovating the building, that the bottom floor was gutted and that he and Steven lived upstairs. Petitioner presented three utility bills from August 2003 and three from June 2004, as well as his Pacific Plumbing business card and the deed transferring the New Hyde Park property to Salma Construction.

District administrators testified that, during three early morning surveillances of the New Hyde Park house, no activity was observed, and that neighbors stated the house had been deserted for two or three years. The district presented photographs of the house showing the gutted first floor, broken windows covered with garbage bags, and significant disrepair. The district attendance supervisor testified that he observed squirrels running around inside the house. He also stated that a computer search of petitioner's name indicated his address was in Brooklyn and also listed his telephone at that address. Respondent's security supervisor testified that on the morning of the hearing he observed, and petitioner admitted, that petitioner picked Steven up from the Brooklyn address.

By letter dated May 5, 2004, respondent's designee notified petitioner of her determination that Steven and his parents did not reside in respondent's district, and that Steven, therefore, was not entitled to attend school there. The letter also indicated that petitioner could appeal the decision within 30 days to the Commissioner of Education.

On September 7, 2004, petitioner commenced this appeal. Petitioner's request for an interim order was denied on September 20, 2004.

Petitioner asserts that he and Steven are residents of respondent's school district, and contends that respondent's determination is not supported by the record. Respondent asserts that its determination that Steven is not a district resident is in all respects proper. Respondent also contends that the appeal is untimely and was not properly served.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent issued its residency determination on May 5, 2004. Petitioner did not initiate this appeal until September 7, 2004. Petitioner asserts that the decision was not mailed to the New Hyde Park address, where he claims he resides, but was mailed, instead, to the Brooklyn address. Respondent submits copies of envelopes addressed to both locations, to which it maintains the decision was mailed. Significantly, petitioner does not claim that he did not receive the decision. He states only that he did not think it was necessary to file an appeal because he thought the renovations to the New Hyde Park house would be complete before school started in September. Petitioner's explanation does not provide a basis to excuse the late filing of the appeal. The appeal, therefore, is untimely.

Petitioner also failed to properly serve the petition upon respondent. Section 275.8(a) of the Commissioner's regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR �275.8[a]). Petitioner submitted an affidavit of service of the petition, sworn to by John Bouzas, in which Mr. Bouzas states that he served the notice of petition and petition on respondent by "delivering and leaving the same in person to the district clerk...." Respondent states in its verified answer that the petition and a note to the district clerk were left with a custodian who was asked to leave the papers on the district clerk's desk. Respondent further states that, upon her arrival at her office on September 8, 2004, the district clerk found the papers and note on her desk. Respondent submits a copy of the note. Petitioner did not submit a reply to respondent's allegations.

In an appeal to the Commissioner, a 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; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Upon review of the submissions by both parties, I conclude that the evidence regarding service of the petition is in equipoise. Petitioner, therefore, has not established that the notice of petition and petition were properly served upon respondent and the appeal must be dismissed for lack of personal service.

Even if the appeal were not dismissed on procedural grounds, it would 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).

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).

Based on the record before me, I find that respondent's determination is neither arbitrary nor capricious. Petitioner has not presented sufficient evidence that he and his son actually reside in respondent's district. Petitioner's business card and the deed to the New Hyde Park property establish only that his businesses own the properties. The utility bills, including only three from August 2003, and three from June 2004, are unpersuasive in view of the contrary evidence submitted by respondent. In addition, petitioner's testimony was inconsistent with the registration forms he filed only eight months earlier stating that Steven's mother also resided at the New Hyde Park address.

Respondent's designee thoroughly analyzed the evidence before her and determined that petitioner's testimony that he and Steven resided in the gutted New Hyde Park house was not credible. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036). I find no basis to substitute my judgment on petitioner's credibility in this case.

In addition, as part of its answer respondent submitted an affidavit by its district attendance officer stating that, on September 10, 2004, he visited the New Hyde Park house again and it still appeared vacant. A tarp was affixed to the house and it had no roof. Petitioner submitted no reply to these allegations.

Upon review of the entire record before me, I find no basis to overturn respondent's determination that petitioner and Steven are not residents of the district.