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Decision No. 15,860

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

Decision No. 15,860

(January 20, 2009)

Girvin and Ferlazzo, P.C., attorneys for respondent, Kristine A. Lanchantin, 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’s prior appeal regarding Joseph’s residency was dismissed on August 20, 2008 (Appeal of Costanzo, 48 Ed Dept Rep ___, Decision No. 15,825).  The facts set forth in that decision are incorporated herein by reference, and will not be repeated.

Petitioner reapplied to respondent for Joseph’s admission on or about September 3, 2008.  Petitioner has consistently contended that he and Joseph reside with petitioner’s sister in her apartment on Sagamore Road, within the district.  In his reapplication, petitioner submitted a lease agreement between himself and his sister dated September 1, 2008 and several documents reflecting the Sagamore Road address: his driver’s license (issued February 20, 2008); the first page of his 2007 federal and New York income tax returns; telephone bills from June and July 2008; a September 2008 cable bill; credit card bills from July and August 2008; two vehicle registrations and a vehicle insurance card effective June 2008.  Petitioner also submitted affidavits from his sister, attesting that petitioner and Joseph reside with her, and from Joseph’s grandmother (who resides outside the district) that Joseph was not permitted to visit and stay overnight with her on weekdays during the school year.

After receipt of the application, the district clerk retained a private investigator who contacted the company managing the Sagamore Road apartment (“company”).  The company informed the investigator that it had no record of petitioner or Joseph at that address.  The investigator informed the clerk, who then apparently rejected petitioner’s application, although there is no copy of the rejection notification in the record.

Subsequently, petitioner obtained a letter from the company dated October 6, 2008, permitting Joseph to stay as a guest in petitioner’s sister’s apartment.  Pursuant to the lease agreement, guests are permitted for a one-month period.  By letter dated October 6, 2008, respondent’s counsel informed petitioner that since Joseph was permitted as a guest in the apartment for only one month, his stay was temporary and therefore he was not considered a resident for attendance purposes.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 5, 2008.

Petitioner maintains that he and Joseph reside with petitioner’s sister on Sagamore Road within the district and that Joseph is entitled to attend school in the district.  He contends that as per the company’s October 6, 2008 letter, the lease agreement permits him, as the brother of the apartment’s owner, to occupy the apartment, and that pursuant to Education Law §3202, Joseph is presumed to reside with him.  He also submits a November 26, 2008 letter from the company, confirming that its board of directors granted permission for Joseph to reside in the apartment as a guest through June 2009.

Respondent asserts that the appeal must be dismissed for improper service and for failure to state a claim upon which relief may be granted.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).

Petitioner’s affidavit of service indicates that the petition was served on respondent by personal delivery to the superintendent on October 28, 2008.  In his reply, petitioner states that the superintendent’s secretary accepted service of the petition on the superintendent’s behalf and stated to the process server that she would accept the papers for him.  However, the superintendent avers in his affidavit that he did not personally receive the petition because he was out of town that day and his secretary has no authority to accept service on his or the district’s behalf.  When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of J.L., 47 Ed Dept Rep 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).

In light of this disposition, I need not address the parties’ remaining contentions. Although the petition must be dismissed on procedural grounds, I note that petitioner retains the right to reapply for admission on his son’s behalf at any time and to submit any documentary evidence, such as the November 26, 2008 letter, for respondent’s consideration.