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Decision No. 15,827

Appeal of JEH HONG LIN and YALING LIN, on behalf of their sons RAYMOND and LAWRENCE, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 15,827

(August 22, 2008)

Dominic S. Rizzo, Esq., attorney for petitioners

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, James H. Pyun and Christie R. Medina, Esqs., of counsel

AHEARN, Acting Commissioner.--Petitioners challenge the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that their sons, Raymond and Lawrence, are not district residents.  The appeal must be dismissed.

In April 2007, petitioners purchased a house in respondent’s district (“Great Neck property”).  At the time petitioners resided in Bayside, New York (“Bayside property”) within another school district.  In May 2007, petitioners enrolled their children in respondent’s district for the 2007-2008 school year.  In September 2007, the boys were admitted to respondent’s schools.  In November 2007, the district received information suggesting that Raymond and Lawrence did not reside within the district, but instead resided at their former address in Bayside.

In a November 7, 2007 telephone conversation with respondent’s registrar, petitioners admitted that, at the time, they were living outside the district at the Bayside property.  However, petitioners indicated that the Great Neck property was under construction and they had moved to the Bayside property only for the duration of the demolition and construction.  By letter dated November 8, 2007, the registrar notified petitioners of their opportunity to present by November 19, 2007 information regarding their residency.  On November 16, 2007 petitioners provided two unsworn letters from a builder and an acquaintance, one piece of correspondence and a picture of the house in Great Neck.  By letter dated November 20, 2007, the registrar notified petitioners of the determination that their children were not district residents and, therefore, were not entitled to attend school in the district without payment of tuition. 

Petitioners appealed to respondent and, by letter dated January 8, 2008, respondent notified them that it had upheld the registrar’s determination.  This appeal ensued.  On January 22, 2008, petitioners’ request for interim relief was granted and respondent was directed to continue to admit Raymond and Lawrence to its schools pending a determination of the appeal.  By letter dated July 10, 2008, my Office of Counsel requested that the parties provide information regarding the status of the Great Neck property.  Petitioners submitted an affidavit dated July 25, 2008 stating that the construction still was not complete.

Petitioners admit that they are currently living at the Bayside property.  They assert, however, that they moved into the Great Neck property in May 2007 and established residency there.  They claim they had to move out of the Great Neck property in September 2007 temporarily so the house could be demolished and rebuilt and that they continue to be residents in respondent’s district.  They assert that construction was to be completed in February 2008.

Respondent contends that petitioners never established residency in its district and that their residence has been and continues to be in Bayside - outside its district.  Respondent maintains that its residency determination was not arbitrary or capricious and was reasonably based on the evidence before it. 

Respondent challenges the scope of the verified reply submitted by petitioners. 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).  Therefore, while I have reviewed the reply, I 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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

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 their claims of residency in respondent’s district petitioners submitted a bargain and sale deed for the Great Neck property and tax receipts.  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).  Similarly, the home owners’ insurance policy statement that petitioners submitted, although listing personal property coverage, does not in and of itself establish actual residency in the district.

Petitioners also provided an unsworn statement from their contractor that merely states that he had visited Jen-Hong Lin at the Great Neck address and “to the best of my knowledge” the family had been living there since May 2007 before the construction began in September 2007.  In this appeal, petitioners submit an affidavit by the same contractor in which he avers, “I understand that the Lin’s moved from the premises on or about September 15, 2007, just prior to the demolition.”  Both statements are qualified and do not provide unequivocal support for petitioners’ claim.

The other documents submitted by petitioners similarly fail to establish that they were actually physically present at the Great Neck property from May through September 2007 and established residency there.  One unsworn statement merely asserts an individual loaned them a truck “for the purpose of” moving to Great Neck.  A pharmacist license registration for Mrs. Lin showing the Great Neck address is dated November 29, 2007 - after the residency dispute arose.  A May 2007 receipt for a television reflects petitioners’ address in Great Neck, but does not indicate where the television actually was delivered.  Petitioners also submit interim and permanent licenses bearing the Great Neck address.  However, the permanent licenses are dated November 27 and 29, 2007 - after the residency dispute arose – and the interim licenses do not indicate when they were issued. 

A third unsworn statement by Jeh Hwang states that he was invited to visit petitioners’ house, but does not state that he did so.  The statement indicates that he helped them “in the process of moving out”, but more specific information is not provided.  He also states that, during the summer of 2007, he discussed whether petitioners should stay in the house during renovation.  This statement contrasts with petitioners’ construction contract, signed on June 2, 2007, that includes demolition of the house.

Finally, petitioners submit one pay stub dated November 8, 2007 with the Great Neck address and one Metro Card receipt on or about August 2007.  Petitioner submits no evidence of actual physical presence, such as utility bills, pertaining to the claimed period of residence from May 2007 through September 2007.  Nor do petitioners present evidence of any ties to the community, then or now, supporting any intent to reside in respondent’s district.

In addition, respondent’s registrar submitted an affidavit in which she states that she obtained information from the Great Neck building department indicating that a demolition permit had been sought for the Great Neck property sometime before May 2007 by the prior owners and the same contractor currently hired by petitioners.  Respondent concluded that petitioners knew of the condition of the Great Neck property before the purchase and could not have intended to live there.  I note that petitioners submitted the builder’s contract, signed on June 2, 2007, less than six weeks after purchase of the property, which required demolition of the house.

On the record before me, I am unable to conclude that respondent’s determination that petitioners did not abandon their Bayside residence and establish residency in it’s district was arbitrary, capricious or unreasonable.  Petitioners’ evidence is simply insufficient for me to conclude that respondent’s determination was irrational and, consequently, I will not set aside that determination.  I note that, to the extent petitioners pay taxes on the Great Neck property, they are entitled to a reduction of tuition pursuant to Education Law §3202(3).

Petitioners have the right to reapply for Raymond and Lawrence’s admission at any time should the circumstances presented in this appeal change (Appeal of Dunbar and Robinson, 47 Ed Dept Rep 33, Decision No. 15,615).