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Decision No. 16,059

Appeal of TAMARA PEROU, on behalf of her children JAMES and KAYLA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,059

(May 10, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her children, James and Kayla, do not reside in the district.  The appeal must be dismissed.

Kayla has been attending respondent’s schools since September 2002 and James since September 2006.  When registering James in July 2006, petitioner submitted a renter’s affidavit claiming residence in Uniondale, within respondent’s district.  At that time, the owner of the Uniondale address, Marie Perou, also submitted an owner’s affidavit. 

In May 2009, the district commenced an investigation after one of petitioner’s children mentioned living in Shirley, outside the district.  Respondent discovered that petitioner and her husband have owned a home in Shirley since 2003.  Surveillance was conducted on 10 different mornings at the Uniondale residence.  No children were observed leaving the house on any of the mornings of May 18, 21, 26, 27, 28, and June 1, 2, 3, 10, and 11, 2009.  A vehicle registered at a Shirley address to James Perou, petitioner’s husband and the children’s father (heinafter “Mr. Perou”), was observed arriving at and departing from the Uniondale address on several mornings.

By letter dated June 9, 2009, the superintendent advised petitioner and Mr. Perou, at their Shirley address, that the children are not eligible to attend respondent’s schools because they reside in Shirley, outside the district.   

An appeal was requested and a conference was held on June 15, 2009 with Mr. Perou, respondent’s administrative assistant for central administration and the investigator who conducted surveillance.  Mr. Perou stated that he owns several properties, including the Shirley house and acknowledged jointly filing his taxes with petitioner from the Shirley address.  However, he claimed that they reside with his mother at the home she owns in Uniondale and described the Shirley property as their summer home.  He also stated that he travels for work between six to eight months per year and often relies on his wife to transport the children to school.  He also admitted using the Shirley address to register and insure their motor vehicles.

By letter dated June 17, 2009, petitioner and Mr. Perou were advised of the district’s determination that their children are not district residents and would be excluded as of June 26, 2009.  This appeal was commenced on July 21, 2009.  Petitioner’s request for interim relief was denied on August 3, 2009. 

Petitioner claims that she and her children reside in Uniondale and requests that her children be allowed to attend respondent’s schools tuition-free.  She admits that her appeal is untimely and offers the excuse that she was seeking affordable legal counsel.  

Respondent contends that the appeal should be dismissed as untimely and contends that petitioner failed to prove that she and her children are district residents.  Respondent also objects to consideration of new matters raised in petitioner’s reply that are not responsive to factual allegations or affirmative defenses raised in its answer.

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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Delaney, 46 Ed Dept Rep 253, Decision No. 15,498; Appeal of Laurencon, 45 id. 514, Decision No. 15,399).  I find no unusual circumstances in this case.  Respondent’s residency determination was issued on June 17, 2009, and the petition was served more than 30 days later, on July 21, 2009.  Petitioners’ explanation that she was seeking affordable counsel is not a sufficient basis to excuse the appeal’s untimeliness because it is not necessary to retain an attorney in order to bring an appeal, as evidenced by the fact that petitioner was able to bring this appeal prose (seeAppeal of T.D. and K.D., 49 Ed Dept Rep ____, Decision No. 16,008; Appeal of Kelly, 39 id. 164, Decision No. 14,203; Appeal of T.B., 35 id. 410, Decision No. 13,586).

Even if this appeal were not dismissed as untimely, it would be dismissed on the merits.  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).

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).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

Both petitioner and Mr. Perou claim to reside with their children at the Uniondale home owned by Mr. Perou’s mother.  In support of her claim, petitioner submitted a copy of her New York State driver’s license, a printed personal check in her name, a bank statement in her name, a form from Nassau County Board of Elections, a certificate of proof of juror service in Nassau County, a mobile telephone bill, medical bills, a driver safety course certificate, a credit card statement, an employer pension plan benefit statement, and 2006 tax bills in the name of Jean and Marie Perou.  All of the documents reflect the Uniondale address owned by petitioner’s mother-in-law.  Additionally, petitioner submitted a copy of Mr. Perou’s travel itineraries from September 2008 through February 2009.  Petitioner contends that her children’s weekend and one-to-two day stays throughout the course of the school year with Mr. Perou in Shirley are not sufficient to establish residency there. 

Respondent, on the other hand, contends that petitioner and Mr. Perou reside with their children in their home in Shirley that they own and claim when filing their taxes.  Respondent alleges that the children were not observed departing the Uniondale home for school on any of the 10 separate mornings in May and June of 2009 when surveillance was conducted.  Respondent asserts that petitioner did not refute the surveillance evidence.  Respondent also asserts that it does not accept non-resident students except in circumstances not relevant in this case. 

I find the evidence presented by petitioner insufficient to meet her burden of proving she resides at the Uniondale home, particularly when balanced against the surveillance evidence presented by respondent and other facts in the record.  Specifically, petitioner admits that her children stayed overnight at the Shirley residence on at least some occasions during the school year.  In addition, petitioner admits that she and Mr. Perou own the residence in Shirley claimed on their income tax and on his driver’s license and registration.  In contrast, no lease exists for the Uniondale property and Mr. Perou did not appear to have a key for that house when respondent’s surveillance confirmed that petitioner’s children did not depart from there on any of the surveillance days.  Accordingly, based on the record before me, I cannot find respondent’s determination to be either arbitrary or capricious.  Therefore, the appeal must be dismissed.