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Decision No. 15,825

Appeal of ANGELO COSTANZO, on behalf of his son JOSEPH, from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 15,825

(August 20, 2008)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Tuckahoe Union Free School District (“respondent”) that his son, Joseph, is not a district resident.  The appeal must be dismissed.

Petitioner enrolled Joseph in the district’s schools in January 2008. At that time, petitioner maintained that he and Joseph lived with petitioner’s sister on Sagamore Road in Tuckahoe, within the district. By letter dated February 15, 2008, respondent’s superintendent questioned petitioner’s residency, and the district commenced an investigation.  By letter dated May 22, 2008, the superintendent notified petitioner that Joseph was no longer eligible to attend district schools because he resided with petitioner on Rockland Avenue, Yonkers, outside the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 7, 2008.

Petitioner argues that he and Joseph reside with his sister within respondent’s district.  Petitioner requests a determination that he is a district resident and that Joseph is entitled to attend district schools tuition-free.

Respondent maintains that the district’s determination was proper.

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).

Respondent’s investigator conducted surveillance on six mornings between March 4 and March 18, 2008.  On each of those occasions, petitioner and his son were observed leaving the Rockland Avenue address in the early morning hours and traveling by car to Tuckahoe High School.  On  three of these dates, surveillance was also conducted after school and Joseph was observed going to the Tuckahoe Library.  On two of these occasions, Joseph was eventually taken to addresses in Yonkers or Bronxville, outside the district.  In addition, respondent submits a sworn affidavit from the district’s attendance clerk stating that Joseph told her that he lived in Yonkers.

Petitioner explains that he is a Certified Public Accountant and that his office is located at the Rockland Avenue address.  He states that Joseph works for him part-time and on occasion stays at his grandmother’s, which is adjacent to the accounting office.

In support of his residency claim, petitioner submits a sworn affidavit from his sister dated February 4, 2008 that petitioner and Joseph reside with her, his driver’s license (issued February 20, 2008), Joseph’s driver’s license (issued April 19, 2008), Joseph’s Tuckahoe Public Library card, a vehicle registration renewal form, copies of his 2007 federal and New York income tax returns, and several pieces of mail addressed to petitioner at the Sagamore Road address.

With his reply, petitioner submitted three affidavits from individuals who state that they have visited Joseph at the in-district address and an affidavit from a therapist, who states that Joseph resided “with his paternal aunt and at times with his paternal grandmother.”

Based on the totality of the evidence, I do not find petitioner’s documentation persuasive evidence that he is indeed a district resident.  Most of petitioner’s documentation was either issued or delivered after February 15, 2008, when the district first questioned Joseph’s residency.  Further, petitioner fails to adequately explain why he and Joseph were regularly observed leaving the Yonkers address on school mornings.  Accordingly, on the record before me, I cannot conclude that respondent’s determination was arbitrary or capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for his son’s admission if circumstances change and to present any new information for the district’s consideration.