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Decision No. 15,296

Appeal of LORRAINE PILITZ STORMS, on behalf of her son JAMES, from action of the Board of Education of the Merrick Union Free School District regarding residency.

Decision No. 15,296

(August 23, 2005)

Manoussos & Associates, P.C., attorneys for petitioner, Lamont K. Rodgers, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel


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

Petitioner initially registered James in the district's schools in January 2001, indicating that she and James resided with her parents on Monterey Drive, Merrick, within the district, and that James's father lived on Lexington Avenue, Malverne, outside the district. On two occasions during the 2003-2004 school year, the district's assistant superintendent for business and technology questioned petitioner and her husband after receiving information that petitioner and James were not residing at the Monterey Drive address. In response to the first inquiry in February 2004, petitioner and her husband informed the assistant superintendent that they had purchased a home on Clubhouse Road, Merrick, within the district, were renovating it, and would move in shortly. Believing that petitioner still resided on Monterey Drive, the assistant superintendent permitted James to remain in the district's schools. In response to the second inquiry in May 2004, petitioner and her husband admitted that they were not living on Monterey Drive, but claimed that James was living there with his grandmother. They also claimed that the Clubhouse Road house would be ready in September 2004.

In September 2004, petitioner completed a school emergency contact card using the Clubhouse Road address. In November 2004, the assistant superintendent again received information that petitioner and her son were not residing in the district. James's teacher also informed school officials that James admitted to her that he lived in Malverne. Based on this information, the district retained a private company to investigate and conduct surveillance. The investigation company concluded that James was residing at the house at Lexington Avenue, Malverne, and that tenants other than petitioner and her husband occupied the Clubhouse Road house.

By letter dated April 21, 2005, the assistant superintendent advised petitioner of her determination that James was not a district resident and that he would be excluded from school as of May 4, 2005. On May 5, 2005, petitioner and her husband met with the assistant superintendent and the superintendent and asserted that petitioner lived on Monterey Drive because the house on Clubhouse Road was under construction. Petitioner also stated that she was living in Malverne because her parents were on vacation. By letter dated May 12, 2005, the assistant superintendent notified petitioner and her husband that James would be excluded from school after May 18, 2005.

By Order to Show Cause dated May 13, 2005, petitioner obtained a temporary restraining order ("TRO") from Nassau County Supreme Court prohibiting respondent from removing James from the district's schools pending a hearing on June 23, 2005. Respondent did not object to the TRO since there were only six weeks remaining in the school year. James apparently finished the 2004-2005 school year in the district' s schools. According to respondent, petitioner withdrew her application in Supreme Court and commenced this appeal. Petitioner's request for interim relief was denied on July 7, 2005.

Petitioner asserts that she and James reside exclusively on Monterey Drive, and James intends to reside there until September 2005. She seeks a determination that James is a district resident entitled to attend the district's schools. Respondent contends that James is not a district resident.

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 presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child's permanent residence and that the individual exercising control has full authority and responsibility with respect to the child's support and custody (Appeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Moreover, a person can only have one legal residence (Catlin v. Sobol, 155 AD2d 24, revd on other grnds, 77 NY2d 552 (1991); Appeal of O'Herron, 41 Ed Dept Rep 1, Decision No. 14,591; Appeal of LaQuerre, 40 id. 565, Decision No. 14,558). If a person owns or rents property both within and outside the school district, only one property can be considered one's legal residence (Appeal of Reynolds, 41 Ed Dept Rep 32, Decision No. 14,604; Appeal of Scaffa, 40 id. 177, Decision No. 14,453). 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).

In this case, petitioner has provided inconsistent information about her residency. In her petition, she states that she and James reside exclusively on Monterey Drive. In support of this statement she submits a notarized handwritten note from her mother from 2001. In contrast, in her attorney's affirmation filed in Supreme Court, he states that petitioner and her husband have resided at their home located in Merrick (namely Clubhouse Road) since 2002 and have paid Merrick's school taxes on that address since 2001. In petitioner's own affidavit to the Court, she claims that she resides at her Merrick home (Clubhouse Road) but states that she also resides with her mother and son on Monterey Drive. She also admits that she has houses both in Merrick and in Malverne.

In addition, petitioner fails to rebut the district's surveillance and other evidence of non-residency. She provides no explanation in response to the surveillance report that revealed James going to and from the Malverne house but not to or from either in-district address. The report also revealed tenants living in the Clubhouse Road house. Moreover, petitioner does not rebut the affidavit of James's teacher, in which the teacher avers that James told her that he actually lived in Malverne.

In addition, although petitioner claims that James lives with his grandmother on Monterey Drive, there is no evidence that petitioner transferred custody or control of James to her mother. Furthermore, petitioner states that James intends to live on Monterey Drive only until September 2005.

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).

In sum, petitioner has submitted no documentation or evidence to rebut the presumption that James resides with her outside the district. Mere ownership of property or payment of taxes does not confer residency status, and petitioner has otherwise failed to establish that she resides in the district. Accordingly, respondent's determination was not arbitrary or capricious, and will not be set aside.