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Decision No. 15,428

Appeal of T.D., on behalf of her nephew M.D., from action of the Board of Education of the Hauppauge Union Free School District regarding residency.


Decision No. 15,428


(August 1, 2006)


Guerico & Guerico, attorneys for respondent, Matthew R. Fleming, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hauppauge Union Free School District (“respondent”) that her nephew, M.D., is not a district resident.  The appeal must be dismissed.

On February 24, 2005, M.D. was admitted to Pennsylvania Clinical Schools through Longwood Central School District where his grandmother, M.D.’s guardian, was a resident.  Pennsylvania Clinical Schools is a 24-hour residential treatment center which provides M.D. with food, shelter and clothing.  Soon after M.D. was placed in Pennsylvania Clinical Schools, his grandmother moved to North Carolina.  Pursuant to a March 17, 2005 Surrogate’s Court Order, petitioner, a resident of respondent’s school district, was appointed temporary co-guardian of M.D.  On September 29, 2005, petitioner attempted to enroll him in respondent’s school district.

By letter dated November 16, 2005, respondent’s Assistant Director of Pupil Services notified petitioner that the Order of Temporary Guardianship was not sufficient to establish permanent placement with petitioner and M.D. would not be admitted to respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 7, 2006.

Petitioner claims that because she is a co-guardian, M.D. is entitled to enroll in the school district in which she resides.  Additionally, she contends that the fact that M.D. does not live with her is not evidence of non-residency since he lives in a 24-hour treatment center in Pennsylvania.

Respondent argues that petitioner has not established that M.D. resides within its school district and its refusal to enroll M.D. was therefore reasonable.  Respondent also asserts that the appeal is untimely.


The appeal must be dismissed as 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).  Petitioner admits she was notified of respondent’s determination by letter dated November 16, 2005.  However, petitioner’s first attempt to serve her appeal did not occur until January 20, 2006, well after the 30-day period had run, and she offers no excuse for the delay.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of M.D. at any time (Appeal of Agee, 45 Ed Dept Rep 331, Decision No. 15,338; Appeal of Torres, 45 id. 170, Decision No. 15,292).  In the event of a reapplication, respondent should consider the principles stated in Appeal of D.R. (45 Ed Dept Rep ____, Decision No. 15,412) and any subsequent residency decisions issued by the Commissioner.