Appeal of ANTHONY MERLINO, on behalf of his son BRANDON, from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding residency.

Decision No. 15,779

(July 10, 2008)

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 Katonah-Lewisboro Union Free School District (“respondent”) that his son, Brandon, is not a district resident.  The appeal must be sustained.

Petitioner and his wife own a home in Wappingers Falls in the Arlington Central School District (“Arlington”).  On March 6, 2008, petitioner attempted to register Brandon in 10th grade in respondent’s high school in anticipation of his March 17, 2008 purchase of a condominium on Stone Meadow Drive in South Salem in respondent’s district.  District officials denied registration at that time because petitioner and Brandon were not district residents.  In addition, the district’s director of counseling (“director”), who oversees the registration process, believed that petitioner’s only reason for moving into the district was for Brandon to play lacrosse.

Petitioner proceeded to procure a Pre-Possession Agreement (“Agreement”) from the condominium’s seller permitting him to pay daily rent and take occupancy of the condominium prior to the scheduled closing on March 17, 2008.  Petitioner states that he and Brandon moved into the condominium on March 12, 2008 and he remitted the Agreement to the district the next day.  Thereafter, the director initiated an investigation of petitioner’s residency.

Surveillance on March 18, 2008 revealed an empty studio condominium.  By letter dated March 19, 2008, the superintendent notified petitioner that although he owned property in the district, he did not physically reside there and Brandon was therefore ineligible to attend school in the district.

By notarized letter dated March 26, 2008, petitioner informed the superintendent of his intent to reside permanently with Brandon in the condominium.  By letter to the superintendent dated March 27, 2008, petitioner submitted additional documentation of his new residence consisting of a health club membership, utility bill, bank and credit card statements, and homeowner’s insurance.

By letter dated March 28, 2008, the superintendent again determined that although petitioner owned the condominium, he failed to establish residency within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 8, 2008.

Petitioner requests a determination that he is a district resident and that Brandon is entitled to attend the district’s schools tuition-free.

Respondent asserts that the petition is not verified and fails to state a claim upon which relief can be granted.  Respondent admits that petitioner owns the condominium but contends that his stay in the district is temporary and merely for the purpose of allowing Brandon to play lacrosse.  Respondent asserts that petitioner retains his primary residence in Wappingers Falls with his wife and children and that its determination was rational and reasonable.

Initially, I will address two procedural issues.  Respondent asserts that the petition is not properly verified as required by §275.5 of the Commissioner’s regulations.  However, the petition submitted to my Office of Counsel contained the requisite verification.  While petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner was not represented by counsel and my Office of Counsel received a verified petition (Appeal of Meringolo, 45 Ed Dept Rep 128, Decision No. 15,281; Appeal of M.M., 42 id. 323, Decision No. 14,870).

On April 2, 2008, two days after the petition was served, petitioner submitted an addendum and additional exhibit to the petition, and requested that I accept them under §276.5 of the Commissioner’s regulations.  That section permits the submission of additional papers in my discretion.  Petitioner’s submissions respond to information in the superintendent’s March 28, 2008 letter, which petitioner asserts he did not receive until April 1, 2008, after he filed the petition.  Although respondent objects to the submissions, respondent did not claim that any prejudice would result from my acceptance of them.  In addition, respondent was granted an extension of time in which to respond.  Under these circumstances, I have accepted petitioner’s submissions.

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).

The parties do not dispute that petitioner owns a condominium in the district.  Rather, the issue is whether petitioner physically resides there with Brandon and intends to do so permanently.  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).  Respondent relies on the investigative report as proof that petitioner is not residing in the condominium.  An investigator initially observed the condominium on March 18, 2008 at 7:15 p.m. and reported that it was a studio without any furniture.  He added that residents of the neighboring unit told him that no one had moved in yet.  He next observed the condominium on Monday, March 31, 2008 at 6:20 a.m., observed petitioner exit and drive away, and left at 8:00 a.m. to proceed to the Wappingers Falls address, where he did not observe any family members but spoke to neighbors.  Of the eight other surveillance dates in the investigative report, petitioner and/or his car were observed at the condominium early in the morning and evening on four dates.  The remaining four dates were a Friday at 8:30 p.m., a Saturday at 10:00 p.m., a Sunday at 12:00 a.m. and another Friday at 12:30 p.m.  Brandon was seen with petitioner exiting the condominium once early in the morning.  Petitioner’s wife and daughter were observed exiting the Wappingers Falls’ house in the morning for the school bus.

I find respondent’s surveillance report inconclusive and unpersuasive.  Brandon was admitted to the district’s schools as of April 8, 2008.  Prior to that, surveillance on April 1, 2, and 3, 2008 revealed petitioner’s car at the condominium both in the early morning and in the evening.  On April 3, 2008, Brandon was observed exiting the condominium with petitioner.  Petitioner’s workout schedule provides a reasonable explanation for the investigators observing him arrive at the condominium at approximately 7:00 a.m.; the report reveals that the investigators did not begin observation before 6:15 a.m. when petitioner may have already left for the gym.  After April 8, 2008, three surveillance dates were weekend nights, which are inconclusive.  On the fourth date, Thursday, May 8, 2008, petitioner’s car was observed at the condominium at 6:20 a.m. and petitioner and Brandon were observed entering the car at 7:10 a.m.  The investigators never followed Brandon to or from school; indeed, there is no indication when school began or ended.  Significantly, neither Brandon nor petitioner was observed at Wappingers Falls.  An individual seen mowing the lawn at the address was never identified.

Although petitioner’s wife and daughter have not vacated or abandoned the home in Wappingers Falls, that does not necessarily mean that petitioner and Brandon continue to reside there, especially when juxtaposed with contrary evidence.  In addition to the previously provided contract of sale, Agreement, notarized letter of his intent to reside there permanently, health club membership, utility bill, bank and credit card statements, and homeowner’s insurance, petitioner asserts that he moved into the condominium on March 12, 2008, and supplies a bill of lading from a moving company for that date.  Petitioner’s supervisor provides a sworn statement that petitioner’s employment responsibilities require him to travel to Long Island, Brooklyn and Queens.  Petitioner also provides an unsworn letter from his real estate agent that he was given the keys and took possession of the condominium on March 12, 2008, two unsworn letters from residents of neighboring condominiums stating that he lives there, and an unsworn letter from a neighbor who is a fitness instructor at his gym stating that petitioner works out between 5:30 a.m. and 6:45 a.m.  Moreover, petitioner denies that he enrolled Brandon solely to take advantage of the lacrosse team.

On the facts before me, I cannot conclude that respondent’s determination is supported by the record.  Accordingly, respondent’s determination must be set aside as arbitrary and capricious.

In light of this disposition, I need not address respondent’s demand for tuition.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Brandon to attend school in the Katonah-Lewisboro Union Free School District without the payment of tuition.

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