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Decision No. 16,062

Appeal of AUDRIGUE JEAN-LOUIS, on behalf of his son AUDRIGUE JEAN-LOUIS JR., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,062

(May 10, 2010)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq. of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that his son, Audrigue, is not a district resident.  The appeal must be dismissed.

Petitioner resides within respondent’s district.  In 2008, Audrigue was enrolled in the seventh grade in respondent’s district.  It is respondent’s policy to conduct home visits for all incoming seventh graders.  Respondent’s representatives made several attempts to conduct a home visit at petitioner’s premises in August 2008, but no one was present.  Respondent’s representatives also conducted surveillance of petitioner’s residence several times during the morning hours from November 2008 through March 2009 and petitioner’s son was only seen leaving petitioner’s residence to attend school on one occasion, the date of the residency hearing.  On the date of the hearing, respondent’s representative also conducted a home visit and concluded that there was no evidence that petitioner’s son resided at petitioner’s residence.

By letter dated February 24, 2009, the administrative assistant to the Superintendent notified petitioner of his determination that petitioner’s son did not reside within respondent’s district.  By letter dated March 9, 2009, petitioner appealed the determination to respondent’s administrative review officer.  A hearing was held on March 10, 2009, at which both petitioner and the student’s mother testified.  By letter dated May 28, 2009, respondent’s administrative review officer notified petitioner of her determination that Audrigue was not a resident of respondent’s district and would be excluded as of June 25, 2009.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 27, 2009.

Respondent contends that the appeal is untimely and that its determination was rational and supported by the record.

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).  Petitioner commenced this appeal on August 13, 2009, more than 30 days after respondent’s May 28, 2009 determination and more than 30 days from the effective date of his exclusion, June 25, 2009.  The Commissioner has previously excused delays in residency cases where, interalia, the facts suggest residency in the district, the delay is deminimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of Faucett, 38 id. 117, Decision No. 13,996).  These factors are not present here.  Moreover, petitioner failed to submit a reply and therefore failed to respond to respondent’s defenses.  Therefore, I must dismiss the appeal as untimely (Appeal of P.B. and T.B., 49 Ed Dept Rep 1, Decision No. 15,941; Appeal of Faucett, 38 id. 117, Decision No. 13,996).

In light of this disposition, I need not address the parties’ remaining contentions.