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Decision No. 16,278

Appeal of BASMATTIE KAHNAUTH, on behalf of her son ANDREW, from action of the Board of Education of the Lawrence Union Free School District regarding residency.

Decision No. 16,278

(August 8, 2011)

Minerva & D’Agostino, P.C., attorneys for respondent, Roslyn Z. Roth, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Lawrence Union Free School District (“respondent”) that her son, Andrew, is not a district resident.  The appeal must be dismissed.

In late November 2010, the superintendent’s secretary received information that Andrew was being transported to his father’s work place, after which his father would drive him to Lawrence High School.  An investigation was commenced.

The investigator reported that he had previously investigated the family during the 2006–2007 school year.  At that time, he found two addresses jointly owned by petitioner and her husband: 105th Street in Ozone Park, outside the district and Provenzano Street in Inwood, in the district; and a third address on Burnside Avenue in Lawrence in petitioner’s husband’s name only.  Both adults had driver’s licenses with the 105th Street address.  Three surveillances over two weeks at Provenzano Street yielded no sightings of either of the family’s cars there.  At 105th Street, however, during three of four surveillances over three and one-half months, petitioner’s husband was observed leaving the residence with both children at 7:15 a.m., driving to the high school to drop off his daughter, then driving to the business located on Burnside Avenue, where he and Andrew entered and remained until 8:15 a.m., when they departed and drove to the district’s middle school.  The investigator concluded that the children were not valid district residents.

On May 29, 2007, the district’s supervisor of registration (“supervisor”) notified petitioner and her husband that their children’s residency was in question and offered them an opportunity to present evidence of their residency.  In a supplemental report filed in June 2007, the investigator stated that the two-family structure on Provenzano was occupied by two tenants, neither of whom were petitioner or her husband.  There is nothing further in the record relating to that residency determination and Andrew (and presumably his sister) apparently remained enrolled in the district’s schools.

Following the 2010 referral that is the subject of this appeal, the investigator stated that he went to Provenzano Street, the address listed in Andrew’s school records, where he noticed a demolition permit, issued to petitioner’s husband, for a garage which had been demolished and removed from the property.  He stated that no one answered on the second floor, but on the first floor, a ten-year-old boy answered the door and responded that he knew Andrew and petitioner’s husband as the man who picks up the rent.  The child also told the investigator that his mother was too busy to come to the door, and that the upstairs apartment was vacant.  The investigator concluded that Andrew was not a valid resident of the district.

By registered letters dated December 3, 2010 sent to both 105th Street and Provenzano Street, the supervisor notified petitioner and her husband that Andrew’s residency was in question and offered them an opportunity to present evidence of their residency.  Both letters were returned as unclaimed.  The supervisor sent a second letter, dated December 13, 2010, stating that since petitioner and her husband had not responded to the December 3, 2010 letter or sent any documentation proving their residency in the district, Andrew would be excluded from the district’s schools as of December 23, 2010.  This letter was also allegedly hand-delivered to Andrew at school.

Petitioner states that she received a postal notice of an attempted delivery and was waiting for the post office to make a second delivery of the first letter, but did not know that the letter contained dated material.  She denies that Andrew received a hand-delivered letter and also states that when she received the December 13, 2010 letter, she telephoned the school on December 15, 2010 “to request an opportunity to bring proof of residency to a person named Carol,” who replied that the deadline had been December 10, 2010.  Petitioner states that Carol refused to accept any documentary evidence but requested to visit their home.  According to petitioner, Carol requested to visit Provenzano at an inconvenient time, then never appeared at the rescheduled time, and, when petitioner called again, Carol proceeded to interrogate her about the contents of her home and her lifestyle.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 26, 2011.

Petitioner admits that she and her husband own both the 105th Street and Provenzano properties.  She contends, however, that Andrew resides with both of them on Provenzano, and that they merely sleep over occasionally at 105th Street when she works late because it is so close to her office.  She contends that respondent never visited Provenzano and made an unjustified determination without a proper and complete investigation.  She asserts that she pays taxes on Provenzano and on her husband’s property on Burnside and submits other documents demonstrating that she resides on Provenzano Street with Andrew.

Respondent contends that the appeal must be dismissed as untimely and because petitioner and her family actually reside on 105th Street.  Respondent asserts further that petitioner was offered the opportunity but failed to submit documentation of her residency prior to its determination, which was based on credible evidence that she and her family do not reside in the district.

I must first address two procedural issues.  On February 23, 2011, respondent served a supplemental affirmation regarding respondent’s failed attempts to serve its answer on petitioner at the Provenzano address.  I have accepted these supplemental papers pursuant to 8 NYCRR §276.5.

The appeal must be dismissed as 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).

Respondent issued its determination letter on December 13, 2010, which contained a paragraph informing petitioner of her right to appeal to the Commissioner within 30 days.  Petitioner acknowledges receiving the notice on December 17 or 18, 2010 (and also called the district on December 15), but failed to serve the petition until January 21, 2011, more than 30 days later.  Accordingly, I find unavailing petitioner’s excuse that she was unaware of the deadline to file her petition and find the appeal untimely.

Although I am constrained to dismiss the appeal as untimely, I remind respondent of its obligation to comply with §100.2(y) of the Commissioner’s regulations, which requires it to provide parents an adequate and meaningful opportunity to provide proof of residency prior to making its final residency determination.

I note that petitioner retains the right to reapply for admission to the district on Andrew’s behalf and to present any new information or documentation for respondent’s consideration.