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Decision No. 16,084

Appeal of JULIA RIGBY, on behalf of her son JONATHAN LALLY, from action of the Board of Education of the Bayport-Blue Point Union Free School District regarding residency.

Decision No. 16,084

(July 2, 2010)

Keegan & Keegan, Ross & Rosner, L.L.P., attorneys for petitioner, Jamie G. Rosner, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Blue Point Union Free School District (“respondent”) that she and her son, Jonathan, are not district residents.  The appeal must be dismissed.

In March or April 2009, Jonathan informed his classroom teacher that he had moved from Bliss Street, which is located within the district, to Jefferson Avenue, an address located outside the district, and that his mother was driving him to the bus stop because it was too far for him to walk.  The teacher shared this information with the school principal.  Also in March 2009, petitioner submitted a residency affidavit on which she listed four other individuals as residents of the Bliss Street address but not herself, Jonathan, or his father.  At some point during the spring of 2009, the district began investigating Jonathan’s residency.  In June 2009, an unidentified tenant at Bliss Street informed a district security officer that neither petitioner nor Jonathan lived there.  The bus driver on the Bliss Street route also reported that she had observed Jonathan being driven to the bus stop from approximately February through June 2009.

By letter dated June 19, 2009, the district’s director of registration (“director”) requested that petitioner and her husband provide her with information regarding Jonathan’s residency.  Petitioner eventually submitted a water bill for the period January through April, 2009; a mobile phone bill due September 2009; a car insurance bill due August 2009; and a hospital bill for her daughter dated June 18, 2009, all with the Bliss Street address.  She also submitted a power bill for June 2009 in the name of Elizabeth O’Connor, who was listed on the residency affidavit, and an affidavit from Ms. O’Connor, dated August 29, 2009, stating that she lived there with her daughter, petitioner, and petitioner’s two children.  Ms. O’Connor also stated that she paid the power bill as part of her agreed financial arrangement with petitioner.  In addition, petitioner and her husband each submitted affidavits, also dated August 29, 2009, stating that they had been separated since October 2008, that Mr. Lally resides on Jefferson Avenue, that both children spend time at Mr. Lally’s house and when they do, he drives Jonathan to the bus stop.

By letter dated September 4, 2009, the director notified petitioner that the district was closing its investigation into her family’s residency and was permitting Jonathan to remain in the district’s schools.

Thereafter, the district subsequently commenced another investigation into petitioner’s residency.  Investigators conducted surveillance at both addresses on 10 days between December 2 and December 15, 2009.  On five mornings, investigators reported seeing a man leave from Jefferson Avenue with a young male and proceed to the school; on four of those five occasions the young male was identified as Jonathan, although the ownership of the vehicle was never confirmed.  On two other occasions, the same vehicle and another with unidentified ownership were seen leaving the Jefferson house and at the school, but a child was not seen in the car.  On two other days, investigators were unable to follow the vehicle and could not see the passengers.  Finally, on the tenth occasion, an unidentified blonde female was seen exiting Jefferson Avenue and dropping Jonathan at school.  Over the course of the surveillance, the investigators never saw an adult and child leave the Bliss Street address and proceed to the school.

By letter dated January 4, 2010, the director determined that Jonathan and petitioner did not reside in the district and that Jonathan would be excluded as of January 15, 2010.  At an informal conference on January 14, 2010, petitioner submitted documentation that her father had been hospitalized from November 17-23, 2009, and therefore Jonathan had spent additional time with his father so that she could care for her father.  By letter dated January 14, 2010, the director determined to exclude Jonathan as of January 25, 2010.  According to respondent, the parties then entered into a non-resident tuition contract, which is not in the record, whereby Jonathan was permitted to remain in school.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 23, 2010.

Petitioner asserts that she and her husband are separated and that they have a joint custody arrangement, but Jonathan resides with her at Bliss Street.  She seeks a determination that Jonathan is a district resident entitled to attend school in the district without the payment of tuition.

Respondent asserts that the petition fails to state a claim upon which relief may be granted.  Respondent contends that the appeal must be dismissed because neither petitioner nor her son resides in the district and that its determination was neither arbitrary nor capricious.

I must first address a procedural issue.  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.

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).

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).

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, there is no dispute that prior to petitioner’s separation from her husband in October 2008, she resided at Bliss Avenue.  However, as noted above, where a child’s parents claim to live apart, 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.  Respondent accepted petitioner’s documentation of residency in September 2009, even in light of the contradictory evidence that the residency affidavit she submitted in March 2009 contained only the names of Ms. O’Connor and her family and did not list herself or her son as residents at the Bliss Street address.  The additional surveillance conducted in December 2009 supports respondent’s determination that petitioner’s son is not a district resident.  Although the district’s investigators failed to identify the owners of the vehicles seen at either address, they nonetheless consistently observed a male and a young man they identified as Jonathan exiting the house from the Jefferson address and proceeding to school in the same vehicles, and never saw Jonathan departing for school from the Bliss Street home.  Furthermore, the observation dates postdated petitioner’s father’s hospitalization period by several weeks.

Petitioner does not provide an adequate explanation of why her son was consistently observed at the Jefferson address during the December 2009 surveillance.  She attaches to her petition a copy of a monthly mortgage statement and a Town of Brookhaven tax bill, both addressed to her and her husband, at the Bliss Street address.  The record does not indicate whether these documents were previously provided to respondent.  Nevertheless, both documents pre-date not only the surveillance, but also the initial investigation and their separation in October 2008; the mortgage statement is dated June 5, 2009, and the tax bill is for the period December 1, 2007 through November 30, 2008.  Neither these documents nor any other documents in the record demonstrate petitioner’s residency within the district.  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).

Based on this record, petitioner has failed to meet her burden of proof that she resides in the district.  Accordingly, I cannot conclude that respondent’s determination was arbitrary or capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for her son’s admission if circumstances change and to present any new information for the district’s consideration.