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Decision No. 16,287

Appeal of MAHARANIE KHAN, on behalf of her children AMELIA and ANWAR, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,287

(August 17, 2011)

Susan N. Persaud & Associates, PLLC, attorneys for petitioner, Susan N. Persaud, Esq., of counsel

Kehl, Katzive & Simon, LLP, attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the City School District of the City of New Rochelle (“respondent”) that her children are not district residents.[1] The appeal must be dismissed.

In February 2010, Amelia and Anwar were admitted to respondent’s schools based on petitioner’s representation that she was living in a “host family” arrangement at an address within respondent’s district.  In November 2010, district administrators learned that Amelia was telling classmates that her father drives her to school every day from the Bronx and began a residency investigation.  On January 5 and 6, 2011, surveillance was conducted which showed petitioner and her children leaving an address listed to “A. Khan” in the Bronx.

By letter dated February 7, 2011, the director of pupil services (“director”) informed petitioner that her residency was in question and provided her an opportunity to present information regarding residency.  Thereafter, on February 17, 2011, the director met with petitioner and her brother-in-law.  The brother-in-law claimed to live in the Bronx with petitioner’s estranged husband, but not with petitioner’s children.  By letter dated March 14, 2011, the director notified petitioner of the determination that she was not a district resident and, therefore, her children were not eligible to attend respondent’s schools.  The letter stated that the children would be excluded after March 25, 2011.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 5, 2011.

Petitioner alleges that her children are residents of respondent’s district, entitled to attend its schools.  Respondent asserts that the appeal must be dismissed for improper service, lack of notice and verification, failure to state a claim upon which relief may be granted, and violation of due process.  Respondent asserts that its residency determination is proper.

Respondent objects to the reply submitted by petitioner,[2]claiming that it contains misstatements of law and fact, as well as new material.  Petitioner submits a response to respondent’s objections.  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.

The appeal must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Petitioner’s affidavits of service indicate that the petition was served on “William Evans” on March 21, 2011, on “Dr. Monifa Tippitt” on March 21, 2011 and on “Rhonda Jones, PhD” on March 23, 2011.  Respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR 275.8[a]) and asserts that it first received a copy of this appeal when it was provided by my Office of Counsel on April 6, 2011.  Additionally, respondent cites to the fact that the dates of service pre-dated the notary public’s jurat on the verification which was dated March 28, 2011.  Respondent submitted affidavits from Dr. Jones and Dr. Tippitt stating that they are not authorized to accept service.

William Evans is listed on Anwar’s report card as principal of respondent’s Albert Leonard Middle School.  A building principal is not one of the individuals set forth in §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be effected, and petitioner has not submitted any proof that he is authorized to accept service for respondent.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  When there is no proof that the individual who received the petition is authorized to accept service on behalf of the school board, service on that individual is improper and the appeal must be dismissed (Appeal of J.L., 47 Ed Dept Rep 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).

In light of this disposition, I need not address the parties’ remaining contentions.  While the petition must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf and to submit any information or documentation for respondent’s consideration.



[1] Petitioner submitted two separate notices and petitions, one for Amelia and one for Anwar, but only one verification, one copy of exhibits and one filing fee.  Additionally, petitioner’s affidavits of service do not denote to which child they apply.  Furthermore, all subsequent submissions were captioned with both children’s names.  Because petitioner commenced this appeal prose, I have deemed petitioner’s actions as intending to bring one single appeal on behalf of both Amelia and Anwar pursuant to Education Law §310.  A liberal interpretation of the [Commissioner’s regulations] is appropriate where the petitioner is prose and there is no prejudice to respondent (Appeal of Metze, 42 Ed Dept Rep 40, Decision No. 14,768; Appeal of Smith, 40 id. 172, Decision No. 14,452).  I note that, subsequent to commencement of the appeal, petitioner retained legal counsel.

[2] Petitioner’s attorney submitted an “Affirmation in Reply and in Opposition to Cross Motion to Dismiss” containing both an affirmation by petitioner’s attorney and a “verified” affidavit in reply by petitioner, as well as related exhibits.