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Decision No. 15,959

Appeal of ANAHIT AZATYAN, on behalf of her son GREG, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 15,959

(August 12, 2009)

Law Office of Nancy T. Sherman, attorneys for petitioner, Nancy T. Sherman, Esq., of counsel

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

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her son, Greg, was not a district resident for a portion of the 2008-2009 school year.  The appeal must be dismissed.

Prior to the 2008-2009 school year, it is undisputed that petitioner and Greg lived in Whitestone, New York (“the Queens residence”).  On August 18, 2008, petitioner requested that Greg be admitted to respondent’s school district.  On the registration form, she indicated that she was having marital difficulties and that she and Greg were residing in the district with her sister at an address in Great Neck, New York (“the Great Neck residence”).  She also submitted an affidavit of custody signed by Greg’s father, relinquishing custody and control of Greg to petitioner and attesting to the fact that Greg was residing at the Great Neck residence.  In addition, she submitted copies of utility and insurance bills with the Great Neck address. 

On or about August 21, 2008, respondent began to question petitioner regarding her residence.  Based on this information, respondent began a residency investigation, and surveillance was conducted on September 1 and 5, 2008 and October 16 through November 10, 2008.  The investigator concluded that Greg was residing at the Queens residence.

By letter dated November 14, 2008, the district registrar notified petitioner that Greg was not a district resident and would not be entitled to attend district schools effective November 25, 2008.  On November 25, 2008, the registrar confirmed that Greg’s last day of attendance in respondent’s schools was November 19, 2008 and provided petitioner with a bill for non-resident tuition for September to November 15, 2008 in the amount of $3,312.75.  Respondent upheld the registrar’s determination and this appeal ensued.   

Petitioner asserts that she and Greg resided with her sister-in-law at the Great Neck residence in respondent’s district from September through November 2008.  Respondent argues that the appeal must be dismissed because petitioner has failed to establish residency in the district and that petitioner and her son resided at the Queens residence during the period in question.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The 2008-2009 school year has concluded, and petitioner makes no claim that Greg is entitled to attend respondent’s school tuition-free during the 2009-2010 school year.  Accordingly, Greg’s residency is no longer at issue.

Petitioner, nevertheless, requests a determination that Greg was a district resident for the time period in question. The Commissioner has historically declined to award tuition in residency appeals (Appeal of Bennett, 45 Ed Dept Rep 110, Decision No. 15,274; Appeal of Crowley, 43 id. 383, Decision No. 15,025).  Such relief should be sought in a court of competent jurisdiction (Appeal of Bennett, 45 Ed Dept Rep 110, Decision No. 15,274; Appeal of Crowley, 43 id. 383, Decision No. 15,025).  Therefore, any discussion of the merits would be advisory in nature. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544; Appeal of Pochat, 45 id. 343, Decision No. 15,342).  Accordingly, the appeal must be dismissed (Appeal of C.S., 47 Ed Dept Rep 407, Decision No. 15,737).