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Decision No. 16,125

Appeal of CHAN SOO KIM, on behalf of his son SUNG JUN, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,125

(August 9, 2010)

Yunsung Choi, Esq., attorney for petitioner

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that his son, Sung Jun, is not a district resident.  The appeal must be dismissed.

In December 2008 petitioner enrolled Sung Jun in respondent’s high school, representing that he resided at an address in Great Neck, New York, within respondent’s district (“Great Neck address”).

In November 2009, based on the district’s inability to contact either of Sung Jun’s parents at the Great Neck address, the district registrar commenced a review of petitioner’s residency status.

By letter dated December 1, 2009, the registrar informed petitioner that, based on information the district had obtained, Sung Jun was not a district resident. In accordance with §100.2(y) of the Commissioner’s regulations, petitioner was afforded an opportunity to submit evidence regarding his residency by December 11, 2009.  The letter further stated that, if petitioner failed to respond, Sung Jun would be excluded from the district’s schools, effective December 12, 2009.  Petitioner did not respond and by letter dated December 11, 2009, the registrar notified him that Sung Jun would be excluded from school the next day and provided the procedures to appeal to respondent.  The registrar also left a message on petitioner’s cell phone on Monday, December 14, 2009, requesting to speak with him to ensure that he understood the situation.

On December 15, 2009 petitioner and his son arrived at the registrar’s office and, at petitioner’s request, the registrar convened a meeting to review Sung Jun’s residency.  Petitioner admitted that he lived outside the district with his new wife and that his ex-wife owned the Great Neck property but lived in Korea.  The registrar also ascertained that Sung Jun lived with his sister at the Great Neck address and was not financially independent of his parents.  Petitioner produced a driver’s license, issued on May 8, 2009 listing a New York City address, and two pieces of mail addressed respectively to petitioner and his son at the Great Neck address.  Petitioner stated that Sung Jun did not want to live with him and his new wife in New York City, that there was not enough room in that home, and that his wife did not wish to live at the Great Neck address owned by his ex-wife. 

On that same day the registrar received a report from an investigator indicating that petitioner owned four vehicles registered to the New York City address.  She was also informed by the high school principal that Sung Jun had indicated on several occasions that petitioner lives in Korea and that his sister is his guardian.  On December 16, 2009, petitioner provided another driver’s license that was issued on December 15, 2009 listing the Great Neck address.  By letter dated December 16, 2009, the registrar notified petitioner of her determination that he was not a district resident, and that it appeared he resides in New York City.  The letter again informed petitioner of his right to appeal to respondent.

By letter dated December 17, 2009, petitioner appealed the residency determination to respondent.  During the appeal, Sung Jun was permitted to continue to attend school in the district.  By letter dated January 15, 2010, respondent denied petitioner’s appeal.  This appeal ensued.  On February 4, 2010, petitioner’s request for interim relief was denied.

Petitioner asserts Sung Jun is a resident of respondent’s district because petitioner lives at the Great Neck address within the district.  Petitioner also claims that, because Sung Jun’s mother owns the Great Neck property and pays school taxes, Sung Jun is entitled to attend the district’s schools.  Respondent maintains that its determination that Sung Jun is not a district resident is supported by the record.

Before addressing the merits, I must first address petitioner’s reply.  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).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

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).

Petitioner has failed to establish he is a resident of respondent’s district or to rebut the presumption that Sung Jun’s legal residence is with a parent outside the district.  Sung Jun’s mother (petitioner’s ex-wife) owns the Great Neck property, but resides in Korea.  Petitioner has not established physical presence at the Great Neck address and thus has not demonstrated that he resides in the district.  In his reply petitioner asserts that he has since moved to the Great Neck address.  In addition to being unsupported by any new evidence, that assertion belies petitioner’s claim of prior residence in the district.  Petitioner also has not demonstrated that there has been a permanent transfer of custody and control to a district resident.   The record indicates that Sung Jun lives at the Great Neck address with his sister, but there is no indication that custody and control of Sung Jun has been transferred to her.

In support of his claim of residence, petitioner provided one bill and one letter addressed to him at the Great Neck address, a license listing that address but obtained just after his son’s residency became an issue, and several unsworn statements of unidentified individuals.  In contrast, the license petitioner first presented indicates his New York City address, his cars are registered to that address and petitioner initially admitted to living in New York City with his new wife.  Respondent credits petitioner’s initial explanation that his son preferred to live in Great Neck, but that his new wife did not.  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).    

Petitioner also contends that, because Sung Jun’s mother owns the Great Neck property and pays taxes, Sung Jun is entitled to attend school in the district, with the taxes deducted from tuition.  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, petitioner misconstrues applicable law regarding property ownership and tax offsets.   Education Law §3202(3) authorizes deduction of taxes paid from nonresident tuition charged by a school district.  It is based on the fact that a student is a nonresident and, at the district’s discretion, is attending school upon payment of tuition.  Petitioner’s contention that the payment of taxes by Sung Jun’s mother entitles him to attend school in respondent’s district, therefore, is without merit.

Accordingly, based on the record before me, I cannot find respondent’s determination to be arbitrary and capricious.  While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for admission on Sung Jun’s behalf if circumstances change, and to present any new information for the district’s consideration.