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Decision No. 15,784

Appeal of PAUL MOSCHETTA, on behalf of his children KRISTIE and RIDER, from action of the Board of Education of the Springs Union Free School District regarding residency.

Decision No. 15,784

(July 19, 2008)

Law Offices of Mark A. Cuthbertson, attorneys for respondent, Mark A. Cuthbertson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Springs Union Free School District (“respondent”) that his children, Kristie and Rider, are not district residents.  The appeal must be dismissed.

Prior to the 2007-2008 school year, petitioner’s children attended respondent’s schools as district residents based on a Manor Lane, East Hampton address within respondent’s district.  On July 30, 2007, respondent received letters from the Shelter Island Union Free School District (“Shelter Island”) indicating that petitioner had enrolled his children in that district.  Petitioner also apparently attempted to enroll Kristie (a high school freshman) in the East Hampton High School as a resident of respondent’s district.[1]

On September 17, 2007, an investigator was sent to the Manor Lane address where, according to the investigator, two people indicated that they were renting the premises and that Kristie did not reside there.  By letter dated September 21, 2007, respondent’s superintendent notified petitioner that it appeared that his children were not district residents and invited him to submit additional information concerning his children’s residency.  In response, petitioner admitted that he had been “spending time” at a property located on Shelter Island, but indicated that this situation was only temporary.  Petitioner also submitted a number of documents, including a mortgage statement and property tax bill for the Manor Lane property, for respondent’s consideration.

On October 5, 2007, a hearing was held, and by letter of the same date respondent’s superintendent notified petitioner of his determination that Kristie was not a district resident.[2]  On October 29, 2007, petitioner submitted an additional document (a construction contract) for respondent’s consideration, but by letter dated November 17, 2007, respondent’s superintendent affirmed his previous decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 22, 2008.

Petitioner admits that he and his children are currently living in Shelter Island, but claims that this arrangement is temporary while work is being done at the Manor Lane property.  Petitioner further asserts that he has owned and paid taxes on the Manor Lane property since 1985, and that this is (and will continue to be) his legal residence.

Respondent denies petitioner’s claims and asserts that its determination was not arbitrary and capricious.  In addition, respondent claims that petitioner’s appeal must be dismissed as 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 commenced this appeal on February 12, 2008.  All of the decisions or acts complained of, however, occurred more than 30 days before that date.  Petitioner offers no explanation for his delay.  Accordingly, the appeal must be dismissed as untimely.

In view of this disposition, I need not address the parties' remaining contentions.  While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his children at any time.



[1]Respondent contracts with the East Hampton Union Free School District for the provision of education to district residents in grades 9-12.

[2]It appears from the record that petitioner’s son was enrolled as a student in Shelter Island and that his residency status was not in dispute.