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Decision No. 15,603

Appeal of JONATHAN LANGSAM, on behalf of his daughter ASTRID, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 15,603

(July 11, 2007)

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Ossining Union Free School District (“respondent”) that his daughter, Astrid, is not a district resident.  The appeal must be dismissed.

Astrid was admitted to respondent’s district pursuant to a registration form, dated July 5, 200 5, which listed an address in Briarcliff Manor (“the Briarcliff address”) in respondent’s district as her residence.

In December 2006, district staff received information indicating that Astrid did not live in the school district but instead, resided in Pleasantville, New York (“the Pleasantville address”).  By letter dated January 4, 2007, the superintendent notified petitioner of the initial determination that Astrid did not live in the district and provided petitioner an opportunity to submit residency information.  On January 19, 2007, the superintendent notified petitioner that, based on the information provided, Astrid could continue attending school in the district, pending further investigation.

Following surveillance of both addresses by a private investigation agency, the superintendent notified petitioner, by letter dated February 5, 2007, that Astrid was not a district resident and was no longer entitled to attend respondent’s schools.

By letter dated March 8, 2007, petitioner’s wife indicated that renovations at the Briarcliff address were complete and that the address on all the family’s bills had been changed.  She offered to submit that paperwork to the district. By letter dated March 13, 2007, the superintendent reiterated his determination that Astrid was not a district resident and would no longer be permitted to attend the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 17, 2007.

Petitioner claims that he and Astrid reside in respondent’s district and that Astrid is entitled to attend school there without payment of tuition.  Respondent maintains that petitioner has not established residency within its district.

I must first address a procedural matter.  In its memorandum of law, respondent claims for the first time that the appeal is untimely.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  I, therefore, have not considered respondent’s timeliness claim. 

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 Innocent, 44 Ed Dept Rep 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).

On the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.  The surveillance report indicates that three video surveillances were conducted at the Pleasantville address on January 23, 25 and 30, 2007.  Petitioner’s car was seen there and, on two occasions, petitioner was observed leaving that address early in the morning.  Video surveillances also were conducted at the Briarcliff address on January 25 and 30, 2007, as well as multiple spot checks.  Petitioner was never observed at that address, nor were his vehicles parked there.  Instead, a vehicle registered to a third party was always seen in the driveway.  Moreover, the investigator posed as a prospective buyer for the Pleasantville address, and petitioner’s wife stated to him that she and her husband had resided there since 1990 and that they also owned property in Ossining that was currently rented.

In support of his claim of residency, petitioner submitted a New York State driver’s license, property tax information, a utility bill and a March 2007 insurance letter, all listing the Briarcliff address.  However, the insurance letter was dated March 28, 2007, after the dispute arose.  The tax information and utility bill are consistent with ownership of rental property as well as a residence and, thus, are not dispositive.  I also note that, throughout this residency dispute, petitioner has offered three different explanations regarding his and Astrid’s presence at the Pleasantville address.  Most recently, in his petition, petitioner claims that he and his wife were temporarily separated and that she and Astrid lived in Pleasantville for a short time.  Despite numerous opportunities, petitioner never presented that information to respondent. 

Based on the totality of the evidence in the record, I cannot conclude that respondent’s determination lacked a rational basis.  While the appeal must be dismissed, I note that petitioner has the right to reapply to the district at any time for admission of his daughter should circumstances change.