Appeal of PAULA SIMS-EDWARDS, on behalf of her daughter ERICA EDWARDS, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 15,795

(July 25, 2008)

Ehrlich, Frazer & Feldman, attorneys for respondent, Christie R. Medina, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her daughter, Erica, is not a district resident.  The appeal must be sustained.

Petitioner enrolled Erica in the district’s schools in September 2006.  At that time, petitioner maintained that she and Erica lived with petitioner’s sister on Hopatcong Avenue in West Hempstead, within the district.  In December 2007, the middle school principal was informed that Erica was living outside the district.  Thereafter, the district’s director of pupil personnel services (“director”) commenced an investigation.

Surveillance revealed that Erica was being driven to school from an address on 176th Street in Jamaica, New York.  Accordingly, by letter dated December 10, 2007, the director notified petitioner that Erica was no longer eligible to attend the district’s schools because she did not reside within the district and would be excluded as of December 24, 2007.  On December 17, 2007, a residency hearing was held and the determination was made that petitioner was not a district resident.  By letter dated January 16, 2008, respondent upheld the residency determination and this appeal ensued.  Petitioner’s request for interim relief was granted on February 7, 2008.

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

Respondent contends that the petition fails to state a claim upon which relief can be granted and requests that I disregard petitioner’s evidence that was not presented at the residency hearing.  Respondent asserts that it properly determined that Erica is not a district resident.

Initially, I must address respondent’s objection to the additional documentary evidence submitted by petitioner with her reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Petitioner contends, and respondent concedes, that she was unable to view the district’s surveillance report at the residency hearing.  As a result, the first opportunity petitioner had to respond to information contained in the report was in her reply.  Therefore, I have accepted petitioner’s reply and exhibits, but have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).

In support of her residency claim, petitioner submits her driver’s license (issued May 3, 2007), her post office change of address confirmation from Pennsylvania to Hopatcong Avenue (dated August 1, 2006), a sworn affidavit dated August 7, 2006 that she resides with her sister, a sworn affidavit from her sister dated August 7, 2006 that petitioner and Erica reside with her, an Internet listing showing her address as West Hempstead and several bills addressed to petitioner at the West Hempstead address.  Petitioner states, however, that her husband, from whom she is separated, moved from Pennsylvania in November 2007 to be near his children and that Erica spends up to three nights a week and some weekends at his apartment at 176th Street in Jamaica, New York.  Petitioner also states that she assisted Erica’s father in obtaining the apartment and that the telephone bill is under her name because of credit issues.  She admits that she has stayed in Jamaica on some occasions, and that he has stayed in West Hempstead while they work to resolve their separation issues, but she maintains that West Hempstead is her primary residence.

Respondent’s investigator conducted surveillance on five occasions between December 3 and December 10, 2007.  On December 3, 2007, the investigator observed Erica being picked up after school by a woman driving an SUV with Pennsylvania license plates and “lost them” near Jamaica.  Later in the evening the investigator observed the same SUV parked in front of the Jamaica address.  On three of the next four occasions, the investigator observed petitioner and Erica leave from the Jamaica address in the morning, and eventually arrive at school.  On the other occasion, the investigator did not see petitioner leaving the Jamaica house, but observed her drop Erica off at the middle school.  The investigator also provided two white page listings for Paula Sims-Edwards, one for the address in Jamaica and a “work” listing as the owner of a company at the Hopatcong address in West Hempstead.

I do not find respondent’s limited surveillance to be persuasive evidence that petitioner and Erica do not reside at the West Hempstead address.  The surveillance on three mornings is consistent with petitioner’s claim that Erica spends three nights per week with her father.  Petitioner also admits that she has spent some nights at the Jamaica address in an effort to resolve divorce, custody and support issues.  The investigator only observed the West Hempstead residence on one occasion and there was no surveillance of that address on school mornings.

Moreover, respondent’s surveillance is contradicted by the documentation submitted by petitioner.  The driver’s license and bills submitted by petitioner all reflect the West Hempstead address.  In addition, there is no evidence that petitioner has a leasehold or other interest in the Jamaica property.  In fact, the lease for the Jamaica property is soley in the name of petitioner’s husband.  While there is a discrepancy between the Internet information submitted by the parties, neither submission is compelling evidence of petitioner’s residency.

In sum, on the record before me, respondent’s determination that Erica does not reside in the district is arbitrary and capricious and must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Erica to attend school in the Malverne Union Free School District without the payment of tuition.

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