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Decision No. 16,140

Appeal of KENNETH and DEBORAH TASHOFF, on behalf of their children EMMA, JACOB, ZACHARY and BENJAMIN, from action of the Board of Education of the Hastings-On-Hudson Union Free School District regarding residency.

Decision No. 16,140

(August 26, 2010)

Law Offices of Anthony J. Pirrotti, P.C., attorneys for petitioners, Anthony J. Pirrotti, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

STEINER, Commissioner.--Petitioners (referred to individually as Mr. and Mrs. Tashoff) appeal the determination of the Board of Education of the Hastings-On-Hudson Union Free School District (“respondent”) that their children, Emma, Jacob, Zachary and Benjamin, are not district residents.  The appeal must be dismissed.

Petitioners lease an apartment on Warburton Avenue within respondent’s district (“Warburton address”) and their children have attended school in the district since September 2008.  Prior to that time, petitioners resided outside the district with Mrs. Tashoff’s mother in Tuckahoe, New York (“Tuckahoe address”).  Based on information received by district staff, surveillance was conducted at the Warburton and Tuckahoe addresses.  By letter dated June 30, 2009 the district treasurer (“treasurer”) notified petitioners that it appeared they did not reside in the district and provided them an opportunity to present evidence prior to a final determination.  Petitioners responded by letter dated July 7, 2009 addressing their residency.  Additional surveillance was conducted and, on August 20, 2009, the treasurer notified petitioners of her determination that they were not district residents.  This appeal ensued.  Petitioners’ request for interim relief was granted on September 16, 2009. 

Petitioners assert that they reside in respondent’s district and their children are entitled to attend school without the payment of tuition.  Respondent maintains that petitioners reside outside the district in Tuckahoe and that its residency determination is in all respects proper.

I must first address a procedural matter.  Petitioners have requested permission, pursuant to §276.5 of the Commissioner’s regulations, to submit additional documentation.  Petitioners’ counsel cites “office failure” as the reason for not including the documents with the petition.  Respondent objects to the submission, but also responds substantively to the additional documents.  Given that respondent had this opportunity, I have accepted and considered the additional documents and respondent’s response. 

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).

Petitioners provide several documents in support of their residency claim, including a rental agreement and a letter from their landlord at the Warburton address.  However,  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).  Petitioners also provide a letter from a utility company indicating that electrical service was provided at the Warburton address in Mr. Tashoff’s name commencing in September 2008, an affidavit from petitioners’ mothers, and two affidavits from neighbors residing at the Warburton apartment building.  Their additional submission includes pay statements, a car insurance identification card and petitioners’ 2008 income tax return, all listing the Warburton address. 

The parties do not dispute that petitioners lease an apartment in respondent’s district.  However, respondent maintains that the evidence does not establish petitioners’ physical presence there.  Respondent initially conducted surveillance on seven weekday mornings over a two week period in June 2009.  Petitioners and their children were observed leaving the Tuckahoe address on six of those mornings.  Surveillance also was conducted one morning at the Warburton address, and petitioners were not observed there.  Additional surveillance was conducted on four days from July 17 through August 11, 2009.  On July 17, surveillance was conducted during the hours of 4:00 p.m. and 6:30 p.m. at the Warburton address, and petitioners were not observed during this period.  On each of the other three mornings Mrs. Tashoff was observed leaving the Tuckahoe address with at least two of her children. 

Petitioners challenge the surveillance evidence, asserting that it was not submitted by the investigator that conducted it.  However, the agency’s owner provided an affidavit describing the surveillance conducted, based on information obtained in the normal course of her business.  In any event, petitioners admit they are frequently present at the Tuckahoe address.  They provide various reasons including an explanation of their work schedules that require their mothers to pick the children up from school and provide childcare at the Tuckahoe address.  They admit that they stay at that address as many as three times each week.  Petitioners also indicate that they have cared for Mr. Tashoff’s mother at the Tuckahoe address when she was ill.   The treasurer averred that Mr. Tashoff stated the family’s possessions are at the Tuckahoe address – a statement not disputed by petitioners. 

Respondent also asserts that two of petitioners’ children indicated to their teachers that the family lives outside the district, and further that an acquaintance of petitioners called the treasurer stating petitioners reside in Tuckahoe.  While petitioners challenge the reported statements as hearsay, they have not established any basis for excluding it from the record.  Rather, the nature of the statements goes to the weight of the evidence and it has been considered accordingly.  I note, however, that the statements are not inconsistent with the other evidence in the record.

In reviewing the documents submitted by petitioners, I observe that the automobile identification card does not indicate when it was issued, and most other documents were dated after petitioners’ residency was questioned.  Notably, petitioners failed to provide any utility bills for the Warburton address dated during the 2008-2009 school year to establish their presence there.  Although affidavits from two Warburton neighbors indicate that petitioners were seen there at various times, these  statements, when assessed against the entire record, are not dispositive.  In light of the surveillance evidence, petitioners have failed to meet their burden of establishing the required physical presence and intent to remain at the Warburton address.

Based upon the record before me, I cannot conclude that petitioners are district residents and find no basis to annul respondent’s determination as arbitrary or capricious.

 While the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on their children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.