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Decision No. 16,150

Appeal of PAUL CLANCY, on behalf of his children TYLER CLANCY-ROMANEK and ASHLEY CLANCY, from action of the Board of Education of the East Meadow Union Free School District regarding residency.

Decision No. 16,150

(September 2, 2010)

Jaspan Schlesinger LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Meadow Union Free School District (“respondent”) that his children, Tyler and Ashley, are not district residents.  The appeal must be dismissed.

Tyler has attended school in respondent’s district since September 2004, and Ashley has attended there since September 2007, apparently based on a representation that they resided on Harton Avenue within the district (“East Meadow address”).  The home apparently is owned by petitioner’s former in-laws.

In February 2010, the district received information that the children were not at the East Meadow address on weekends, school breaks and during the summer.  Respondent initiated surveillance which indicated the children were present at both the East Meadow address and at an address outside the district (“Uniondale address”).

By letter dated April 23, 2010, respondent’s assistant superintendent for business finance (“assistant superintendent”) notified petitioner of his determination that petitioner and his children were not district residents.  Petitioner was advised of his right to submit additional evidence regarding residency prior to a final determination.

By letter dated June 2, 2010, respondent notified petitioner of its final determination that his children were not district residents and would be excluded from district schools effective June 25, 2010.  This appeal ensued.

Petitioner maintains that Tyler and Ashley reside in respondent’s district at the East Meadow address.  Respondent alleges that petitioner fails to state a cause of action, that the petition does not comply with format, content and verification requirements of the Commissioner’s regulations, and that the appeal is untimely.  Respondent also denies that Tyler and Ashley are district residents.

The appeal must be dismissed on procedural grounds.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).

In an appeal to the Commissioner, a 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; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner’s submission consists of a notice of petition, an affidavit of verification, a list of 36 names and signatures of individuals attesting to his residency, and correspondence between himself and the district.  There is no petition setting forth any allegations or information in this appeal pertaining to the underlining complaint or demonstrating that petitioner is entitled to any relief.  Consequently, the petition does not comply with §275.10 of the Commissioner’s regulations.  Moreover, absent any factual allegations petitioner has failed to meet his burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief.

The appeal must also be dismissed because the petition was not properly verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  That section provides in pertinent part, “[t]he petition shall be verified by the oath of at least one of the petitioners . . . .”  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 appeal, the affidavit of verification was not signed by the petitioner.  Instead, the affidavit was signed by an individual who claims to be a “friend in this proceeding,” thus warranting dismissal.

The appeal is also 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).  Respondent notified petitioner of its residency determination by letter dated June 2, 2010.  Petitioner did not serve a proper petition within 30 days of that date or within the time directed by my Office of Counsel.  Accordingly, the appeal is untimely.

While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for admission on Tyler and Ashley’s behalf should circumstances change, and to present any new information for the district’s consideration.