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Decision No. 15,966

Appeal of ZARINA YUSUPOVA, on behalf of her son JONATHAN, from action of the Board of Education of the East Williston Union Free School District regarding residency.

Decision No. 15,966

(August 14, 2009)

Law Offices of Stuart Jay Young, attorneys for petitioner, Stuart Jay Young, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Christopher J. Guercio, Esq., of counsel

HUXLEY, Commissioner.--Petitioner challenges the determination of the Board of Education of the East Williston Union Free School District (“respondent”) that her son, Jonathan, is not a district resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

In April 2008, petitioner enrolled Jonathan as a ninth-grade student in respondent’s schools for the 2008-2009 school year.  According to respondent, at that time, petitioner indicated that she had purchased property in Roslyn Heights, within respondent’s district, and would be moving to that address during the summer of 2008.

As part of the registration process, petitioner filled out several forms on which she listed the Roslyn Heights address and noted that she had previously resided in Forest Hills, outside respondent’s district.  As proof of residency, petitioner submitted copies of her driver’s license, a purchase contract and deed for the Roslyn Heights property, and a homeowners insurance policy, utility bill and mortgage bill.  Petitioner also signed a document entitled “Proof of Residency,” which stated,

Since the cost to educate a child in this District is approximately $12,000 per year, we must be certain that every child is a legal resident .... If it is determined that a registrant’s child resides outside the District, the District may take legal action to collect tuition charges.  Such tuition charges may exceed $12,000 per year if the student is illegally registered. 

In October 2008, respondent’s interim assistant superintendent for business (“assistant superintendent”), received information indicating that petitioner did not reside within the district.  Respondent commenced a residency investigation, which revealed that petitioner’s telephone number and automobile registration listed the Forest Hills address and that the registrations for the two vehicles owned by petitioner’s husband also listed the Forest Hills address.

Surveillance of the Roslyn Heights address was conducted on October 29, 2008.  The investigator observed that the house was still under construction and had been framed but had “no windows, siding and/or roof shingles ... [or] sheetrock inside of the residence.”  On November 20, 2008, the investigator observed Jonathan and his father leaving the Forest Hills address at approximately 7:12 a.m. and proceeding to Jonathan’s in-district school.

By letter dated November 24, 2008, the assistant superintendent informed petitioner that her residency was in question and that a residency hearing would be held on December 2, 2008.  According to the assistant superintendent, at the hearing, petitioner admitted that she had not yet moved to Roslyn Heights and that Jonathan was being transported to respondent’s schools from their Forest Hills residence.  The assistant superintendent states in his affidavit that he advised petitioner that she would be charged tuition in accordance with the district’s residency policy (“policy”) if she did not establish residency by December 15, 2008.

By letter dated December 8, 2008, petitioner’s attorney informed the assistant superintendent that petitioner’s in-district residence was under construction and was expected to be completed within five months.  The attorney noted that petitioner was attempting to obtain temporary accommodations within the district to establish residency in order to comply with the district’s regulations. 

By invoice dated December 17, 2008, the district informed petitioner that she owed $3,849.08 in tuition for the period from September through December 2008.  Thereafter, petitioner requested a meeting with respondent.  In response, the assistant superintendent informed petitioner that Jonathan was not a district resident, that her tuition payment for September through December 2008 was overdue and that she owed an additional $962.27 in tuition for January 2009.  This appeal ensued.

By letter dated July 1, 2009, my Office of Counsel requested that petitioner provide information regarding the status of the Roslyn Heights property.  Petitioner submitted an affidavit dated July 21, 2009 stating that the construction was “virtually complete with only a minor item or two remaining” and that she “expect[s]” to move into the house in August 2009.  Petitioner has submitted no other evidence regarding her current residency.

In this appeal, petitioner admits that she and Jonathan are currently living in Forest Hills.  However, petitioner argues that in September 2008 she informed the district that she was in the process of building a house in Roslyn Heights, that the construction would be completed by May 2009 and that, until that time, she and Jonathan would reside in Forest Hills.  Petitioner argues that she was unaware that she could become liable for tuition costs and asserts that respondent’s claim for tuition is unfair.  Petitioner also submits an affidavit from a friend who states that he was present when petitioner explained her situation and observed no objections from district officials regarding Jonathan’s attendance as a resident student.

Respondent maintains that Jonathan is not a district resident entitled to attend its schools tuition-free.  Respondent asserts that under its policy, if pending legal residence is not established by December 15 of the current school year, tuition will be charged.  Respondent notes that, when petitioner registered Jonathan in April 2008, she signed the “Proof of Residency” document, which specifically stated that she would be liable for tuition if she was found to reside outside the district.

I must first address a procedural issue.  Respondent contends that petitioner’s reply is untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Peterson, 46 Ed Dept Rep 558, Decision No. 15,595; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526).  Respondent’s affidavit of service indicates that the answer was served by mail on March 2, 2009.  Thus, petitioner’s reply was due by March 16, 2009.  On April 1, 2009, petitioner’s attorney served a reply and accompanying affidavits.  On April 12, 2009, petitioner’s attorney served an affirmation urging that I excuse the delay because petitioner did not formally retain him until March 28, 2009.  However, this does not establish good cause for submitting a late reply and, accordingly, I have not considered the untimely reply and accompanying affidavits.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Hensley, 46 Ed Dept Rep 187, Decision No. 15,480; Appeal of Cross, 44 id. 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591).  Moreover, pending home construction does not, in and of itself, establish residency (Appeal of Jankovic, 46 Ed Dept Rep 441, Decision No. 15,558; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

In this case, although petitioner has expressed her intent to move into the district in the future, she has submitted no evidence to indicate that she did so in the 2008-2009 school year and no proof that she has yet done so.  Petitioner admits that she has not been living at the Roslyn Heights address and does not expect to move there until August 2009 at the earliest.  Petitioner was not physically present in the district during the period relevant to this appeal, and therefore, was not a district resident (seeAppeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109).  On the record before me, therefore, I am unable to conclude that respondent’s determination was arbitrary, capricious or unreasonable.  I note that, to the extent petitioner pays taxes on the Roslyn Heights property, she is entitled to a reduction of tuition pursuant to Education Law §3202(3).

While the appeal must be dismissed, petitioner retains the right to reapply to the district for admission of Jonathan at any time should circumstances change (Appeal of Jankovic, 46 Ed Dept Rep 441, Decision No. 15,558, Appeal of Hussain, 46 id. 108, Decision No. 15,456).

Finally, as to the issue of tuition, 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).