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Decision No. 16,229

Appeal of JACOB VARGHESE, on behalf of his son RYAN JACOB, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,229

(June 3, 2011)

Michael W. Holland, Esq., attorney for petitioner

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

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that his son, Ryan, was not a district resident from September 7 through December 10, 2010.  The appeal must be dismissed.

In August 2010, petitioner and his wife lived in Queens and entered into a contract of sale (“contract”) for a home within respondent’s district (“Great Neck property”).  The contract stated that the closing on the Great Neck property would occur on or about October 15, 2010.

On September 3, 2010, petitioner enrolled Ryan as an eighth-grade student in the district pursuant to respondent’s policy (“policy”) which states:

Persons who are scheduled by contract ... to take title to a home ... in the District and move in by November 1st may register their children, prior to commencement of the school year, by delivering ... an executed copy of the contract of purchase ... and a certified check ... equal to 2/10 of the yearly tuition for non-resident students.  The proceeds of the check shall be held in escrow by the School District until delivery of:

  1. Deed or closing statement and 3 pieces of official mail, mailed directly or forwarded by the post office ...

If these documents are delivered to the Office of Registration and Attendance by November 15th, the proceeds of the check together with interest earned, if any, will be returned.  If not, the proceeds and interest, if any, will be retained by the School District, and the student(s) will be disenrolled.

Pursuant to the policy, at the time he enrolled Ryan, petitioner provided the district registrar’s office with a copy of the contract and a certified check in the amount of $4,612.00.  The record contains a copy of the receipt that the registrar’s office provided to petitioner on September 3, 2010, which includes the following notice:  “PLEASE NOTE:  CHECK WILL BE REFUNDED ONLY IF YOU MOVE IN BY NOVEMBER 1ST AND RETURN SUPPORTING DOCUMENTATION TO REGISTRATION OFFICE BY NOVEMBER 15TH.”

The record indicates that petitioner secured a mortgage on the Great Neck property on or about October 29, 2010.  In an affidavit, the registrar explains that, on November 1, 2010, she contacted petitioner by telephone to remind him of the requirements of respondent’s policy.  The registrar also states that she extended the “deadline set forth in [the policy] for closing on and moving into the Great Neck property from November 1st to November 15th.”

By letter dated November 12, 2010, petitioner’s attorney notified the registrar that “we anticipate closing title before the end of this month.”  The registrar explains that, in response to this letter, she again extended the deadline until November 30, 2010.

In a November 30, 2010 letter, petitioner’s attorney informed the registrar that the closing was scheduled to occur on December 1, 2010.  The record indicates that petitioner provided the registrar with a copy of the deed on December 1, 2010.  According to the registrar, based upon petitioner’s assertion that he would move into the Great Neck property no later than the evening of December 1, 2010, she agreed to extend the deadline until December 2, 2010.

To confirm that petitioner had in fact moved into the Great Neck property by December 1, 2010, a home visit was scheduled for December 2, 2010.  The record contains a copy of the investigator’s report, which states that the home visit occurred at approximately 4:20 p.m. on December 2, 2010 and that “[t]he inside of the home ... did not appear habitable as there was no furniture, no appliances, and no clothing in the closets.”

The registrar informed petitioner in a December 3, 2010 letter of her determination that he had not yet become a “bona fide” district resident and was responsible for paying non-resident tuition for Ryan for September, October and November 2010.  The registrar also stated that “we will not be refunding your payment of $4,612.00, and you now owe us $2,306.00 for November.”  By letter dated December 8, 2010, petitioner’s attorney informed the registrar that, in response to her December 3, 2010 letter, petitioner “is delivering a copy of three (3) letters addressed to” the Great Neck property.

On or about December 13, 2010, petitioner appealed the registrar’s determination to respondent.  By letter dated January 25, 2011, the district clerk informed petitioner that respondent denied his appeal, stating that “[a]lthough you purchased a home in the District, you did not actually move in and take up residency in that home until December 11, 2010.”  Together with the letter, the clerk enclosed an invoice for tuition in the amount of $7,493.85 for September, October, November and part of December 2010.  The invoice reflected that $4,612.00 had already been paid, included a deduction for the amount of school taxes paid by petitioner in December, and requested a total amount due of $2,795.44.  This appeal ensued.

Petitioner seeks a determination that Ryan was a district resident for the entire 2010-2011 school year and was entitled to attend school in the district without the payment of tuition.  Petitioner also argues that the policy contains no requirement that residency be established by a date certain in order to “obtain the return of the escrow monies paid” and requests a determination that, by providing respondent with copies of the deed and mail with his in-district address, he complied with the policy and is entitled to a refund of the “escrow monies deposited” with respondent.

Respondent contends, interalia, that the appeal must be dismissed as moot and for lack of jurisdiction and that its residency determination was not arbitrary or capricious.

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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

By letter dated April 26, 2011, respondent requested permission, pursuant to Commissioner’s regulation §276.5, to submit a sur-reply affirmation.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (see 8 NYCRR §276.5).  A sur-reply, however, may not improperly buttress allegations that should have been asserted in an answer (seeAppeal of Malone and Trombley, 39 Ed Dept Rep 135, Decision No. 14,194).  Petitioner urges that I reject this submission on the grounds that respondent failed to properly request permission and to explain why such submission is necessary.  In its April 26, 2011 letter, however, respondent specifically requests that I consider such affirmation in response to petitioner’s reply.  Accordingly, I have accepted respondent’s sur-reply affirmation.  To the extent that such affirmation includes assertions that should have been submitted with respondent’s answer, I have not considered them.

To the extent petitioner seeks a determination that Ryan was a resident student during the 2010-2011 school year, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  While the parties dispute the exact date petitioner’s family moved into the Great Neck property, the record indicates that petitioner’s residency is no longer in dispute and that Ryan has been attending the district’s schools tuition-free since December 11, 2010.  Accordingly, the only remaining question concerns tuition for the period September 7 through December 10, 2010, during which respondent alleges that petitioner resided outside the district.

The Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Therefore, any discussion of the merits would be advisory in nature, and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).