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Decision No. 16,081

Appeal of MAXINE WILLIAMS, on behalf of her son FRANCOIS ALLOTEY, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,081

(June 30, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Marion M. Walsh, Esq. of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that her son, Francois, is not a district resident.  The appeal must be dismissed.

In February 2008, the district received information that Francois was residing in Mount Vernon, outside the district.  An investigation that included surveillance over the course of five days in July 2008 resulted in a report to the assistant superintendent for pupil personnel services (“assistant superintendent”) concluding that petitioner resided in a multi-family house in Mount Vernon where two automobiles registered to petitioner were parked. 

The district’s investigation resumed in December 2009.  On December 1, 2009, petitioner was observed driving Francois to the Mount Vernon address.  On December 2, 2009, the investigator interviewed residents of the multi-family dwelling in White Plains where petitioner claims to reside and found that none had heard of petitioner.  A check of mailboxes revealed none with petitioner’s or Francois’ surnames.  Petitioner and Francois were observed exiting the Mount Vernon residence on the mornings of December 10, 14, 16 and 18, 2009, entering her automobile, and driving to the White Plains High School.

By letter dated December 22, 2009, the assistant superintendent notified petitioner that Francois may not be a resident of White Plains and invited her to submit information regarding her residency by January 4, 2010.  In response, petitioner submitted a one year lease dated August 1, 2009 for the White Plains apartment she claims as her residence.  By letter dated January 5, 2010, the assistant superintendent informed petitioner of her final determination that Francois is not a district resident and would be excluded from the district’s schools after January 29, 2010.  The letter stated that, after receiving the lease, the district continued its investigation and determined that petitioner does not reside at the White Plains address. 

On January 19, 2010 petitioner submitted additional documentation stating that her mother watched Francois during the week while she worked.  After reviewing the documentation, the assistant superintendent sent petitioner a letter on January 19, 2010 affirming the district’s final determination but that letter was returned unopened.  The assistant superintendent sent another letter on January 26, 2010 reiterating the district’s determination that petitioner and Francois do not reside in White Plains.  The district’s investigator attempted to hand-deliver the letter on January 28, 2010 at the Mount Vernon address after observing petitioner’s automobile parked in front.  He knocked on the door and a woman he recognized from photographs as petitioner opened it.  When he advised her that he had a letter from the district, she told him to go away.  He then taped the envelope to the front door. 

On February 3, 2010 at 11:47 p.m., the investigator observed petitioner’s automobile parked a block from the Mount Vernon residence.  The following day, February 4, 2010, the investigator reported that he knocked on the door of the single family home in White Plains identified on the lease submitted by petitioner as her residence.  The investigator reported that an older man and woman opened the door and stated they had owned the home for over 30 years.  Upon examining the lease signed by petitioner and the name of the person who signed as landlord, they reportedly told the investigator the lease was fraudulent and that the purported landlord was a tenant who rented a bedroom on the upper floor, lived alone, and had no authority to rent out the premises.  The owners also reportedly told the investigator that they did not know petitioner or her son but recalled mail coming to the home addressed to petitioner that was returned to the mail carrier. 

This appeal ensued.  Petitioner’s request for interim relief was granted on February 25, 2010.  Thereafter, on the afternoons of March 9, 10 and 11, 2010, the district’s investigator reported observing petitioner’s automobile parked across the street from the Mount Vernon residence.

Petitioner seeks a determination that Francois is a district resident.  Respondent maintains that its residency determination was rational and reasonable under the circumstances.  It further contends that the petition was not properly verified in accordance with the Commissioner’s regulations.

I must first address respondents procedural objections.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  In this case, petitioner did not verify the petition and therefore, the appeal must be dismissed (Appeal of Russell-Otero, 49 Ed Dept Rep 123, Decision No. 15,975).

Even if the appeal were not dismissed on procedural grounds, 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).

On the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.  Petitioner provided the assistant superintendent with a copy of a lease for the White Plains address as well as mail delivered to her there.  On the present record, the validity of the lease presented by petitioner as evidence of residency has been called into question by respondent’s thorough surveillance, and petitioner has failed to meet her burden of proving that she resides at the leased premises or at any other location within respondent’s school district.

While the appeal must be dismissed, I note that petitioner has the right to reapply for admission of her son at any time should circumstances change.