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Decision No. 15,332

Appeal of ROSEMARIE MAYMI, on behalf of her daughter CHARLENE E. GREGG, from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 15,332

(December 21, 2005)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Tuckahoe Union Free School District ("respondent") that her daughter, Charlene, is not a district resident. The appeal must be dismissed.

Petitioner enrolled Charlene in respondent's schools in the fall of 2004. At that time, petitioner indicated that she and Charlene resided with petitioner's sister in respondent's district. Thereafter, the district's administration began to investigate petitioner's residency.

Respondent's investigation revealed that petitioner had and was still using an address in the Bronx. Respondent's investigator also surveilled the Bronx address on four separate occasions.

By letter dated May 19, 2005, respondent's superintendent notified petitioner that he had information to suggest that petitioner and Charlene actually resided in the Bronx. The superintendent therefore requested information regarding Charlene's residency. Petitioner provided a signed statement from the owner of the Tuckahoe property and her sister stating that she and Charlene reside at the Tuckahoe address, within the district. Petitioner also provided a copy of her license and car registration listing the Tuckahoe address.

By letter dated May 31, 2005, respondent's superintendent notified petitioner of his finding that Charlene was not a district resident. This appeal ensued. Petitioner's request for interim relief was denied on July 14, 2005.

Petitioner maintains that she was forced to leave the Bronx address for financial reasons. She claims that she and Charlene temporarily moved in with her sister in respondent's district until her financial situation improved. Petitioner asserts that Charlene lives with her sister in respondent's district during the week and with petitioner or friends on the weekends. Petitioner further claims that she sometimes stays at her old residence with her former roommate when she works overtime or late at night.

Respondent contends that the appeal must be dismissed as untimely and for failure to join a necessary party. Respondent further maintains that Charlene does not reside in the Tuckahoe district.

I will first address several procedural matters. I reject respondent's contention that the petition should be dismissed for failure to join the superintendent as a necessary party. Section 100.2(y) of the Commissioner's regulations permits a board of education or its designee to make residency determinations. Respondent appointed its superintendent as its designee and is responsible for his determination.

Respondent also contends that the appeal is untimely. 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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

Respondent asserts that the appeal must be dismissed as untimely because petitioner did not serve the petition until July 5, 2005, 35 days after respondent's determination. There is no evidence in the record, however, to indicate when petitioner actually received the determination. Thus, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be June 6, 2005. Petitioner commenced this appeal within 30 days of that date. Consequently the appeal is timely.

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).

Respondent's determination was based in part on evidence that petitioner drives Charlene to school from the Bronx address. Petitioner admits that she and Charlene previously lived at the Bronx address, but claims that they both moved in with her sister in September 2004 for financial reasons.

In addition, on four separate occasions, respondent's investigator conducted surveillance of the Bronx address during the early morning hours before school. On three of those occasions, petitioner and Charlene were observed leaving that address and arriving at respondent's school. The fourth time, the student arrived late to school. This evidence directly contradicts petitioner's assertion that Charlene stays with her sister during the week and elsewhere on the weekends. Petitioner did not submit a reply or any response to explain the discrepancies between her explanation and the surveillance evidence.

On the record before me, I find that petitioner has failed to provide sufficient evidence of residency and thus has failed to meet her burden of proof (Appeal of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of K.M., 42 id. 104, Decision No. 14,788). Accordingly, I cannot find that respondent's determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for admission of Charlene at any time should circumstances change.