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Decision No. 16,297

* Subsequent History: Matter of Galperin v King; Supreme Court, Nassau County; Judgment dismissed petition to review; August 10, 2012. *

Appeal of MARINA and MARK GALPERIN, on behalf of their children SOPHIE and JOSEPH, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,297

(August 29, 2011)

Fredric Lewis, Esq., attorney for petitioners

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

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that their children, Sophie and Joseph, are not district residents.  The appeal must be dismissed.

Petitioners own a home in respondent’s district (“Great Neck address”). Petitioners registered Sophie and Joseph in the district on or about February 24, 2009, providing the Great Neck address.  In September 2009, Sophie and Joseph began attending school in the district.  The district registrar (“registrar”) commenced an investigation of petitioners’ residency in October 2010 after receiving a new primary residential contact telephone number from petitioners with an area code outside the district.  The new contact number was for a home, also owned by petitioners, outside the district in Queens (“Queens address”).  Surveillance was conducted on four occasions between October 7 and 14, 2010 at both addresses.  The surveillance revealed that the in-district property was “un-livable” and that the family was present at the Queens address.  In addition, a teacher reported a comment by petitioners’ son suggesting that he did not reside in the district. 

On October 20, 2010, the registrar notified petitioners of her determination that they were not district residents and, therefore, Sophie and Joseph were not entitled to attend respondent’s schools.  The registrar provided petitioners an opportunity to present evidence regarding residency.  Petitioners met with the registrar on October 25, 2010 and, by letter dated November 19, 2010, the registrar notified petitioners that Sophie and Joseph were not district residents and would be excluded from respondent’s schools.  By letter dated November 23, 2010, petitioners appealed the residency determination and, by letter dated December 14, 2010, respondent upheld the registrar’s determination.  This appeal ensued. Petitioner’s request for interim relief was denied on January 21, 2011.

Petitioners contend that the Great Neck address is their residence and that the family has been temporarily living at their former Queens address while the house at the Great Neck address is undergoing extensive renovations and repairs.  Petitioners maintain that they relinquished residency at the Queens address in June 2008 when they moved to the Great Neck address.  Petitioners assert that they attempted to sell the Queens property and only returned to Queens in April 2009 during the renovation because the Queens home had not yet been sold. 

Respondent contends that its residency determination is in all respects proper and that petitioners failed to establish that its decision was arbitrary or capricious. Respondent maintains that petitioners have not demonstrated that they ever physically resided at the Great Neck address and that the mere fact that petitioners own property in the district does not confer residency status.  Respondent also objects to petitioners’ reply, contending that it raises new allegations and contains exhibits that should have been presented with the petition.

I will first address respondent’s objection to the scope of petitioners’ 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.  Consideration of respondent’s sur-reply has also been limited accordingly.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioners acknowledge that their family has been living outside the district at the Queens address since at least April 2009, explaining that the house at the Great Neck address is uninhabitable due to extensive construction.  Respondent’s surveillance also supports the conclusion that petitioners and their children are living at the Queens address outside the district.  Thus, the determinative issues are whether petitioners ever actually physically resided at the Great Neck address and whether their current absence from the district is temporary.  I find petitioners have failed to establish those facts.

At the October 25, 2010 residency meeting, petitioners provided copies of their 2008 and 2009 tax returns.  The registrar avers that, although the first page of the returns listed the Great Neck address, the second page indicated “NYC resident.”  Notably, here petitioners submit only the first page of each return.

In an affidavit, the registrar avers that, at the October 25 meeting, she informed petitioners of the type of materials that would be acceptable to prove that petitioners had actually lived at the Great Neck address, including moving bills and other supporting documentation.  Petitioners indicated that they would provide such documentation, including a bill for moving services, testimonial letters from neighbors and applications for the building permit.  The district afforded petitioners three weeks to submit the documents; however, they failed to do so.  Instead, petitioners provided a utility bill, telephone bill, automobile payment statement, insurance bills and a mortgage statement.  Although the documents reflected the Great Neck address, they did not establish that petitioners had ever been physically present there.  In addition, the registrar also avers that, although petitioners stated at the time of the residency investigation that they had lived at the Great Neck address for approximately three months, they were not able to clearly articulate which three months they had lived there.  I note that in their petition, petitioners claim to have lived in the Great Neck house for approximately 10 months prior to allegedly moving back to Queens during the renovations.

An affidavit from petitioners’ architect annexed to the petition, states that, when purchased in 2008, the condition of the Great Neck address was such that “it rendered it unsafe for the children.”  Similarly, petitioners assert in their petition that they are physicians and believe that “the house was uninhabitable for children in the condition it existed in at the time we took title and would have been detrimental to their health.”  These statements indicate that petitioners were aware of the condition of the house at the time of purchase and undermine the credibility of petitioners’ claim that the family moved into the Great Neck address prior to commencing any renovations.

A review of the documentary evidence annexed to the petition reveals library cards, an insurance card, a driver’s license, a utility bill and the aforementioned first page of petitioners’ 2008 and 2009 tax returns.  None of those documents establish petitioners’ actual physical presence at the Great Neck address.  Indeed, the driver’s license was issued on November 13, 2009 and the insurance card is effective August 11, 2010, when petitioners admit that they were not living at the Great Neck address. 

Thus, although petitioners claim that they intend to return to the Great Neck address after the completion of the renovations, upon review of the totality of the evidence, they have failed to supply sufficient evidence demonstrating that they, in fact, ever relinquished their prior Queens residence and were physically present at the Great Neck address within respondent’s district.  Pending home construction does not, in and of itself, establish residency (Appeal of a Student with a Disability, 46 Ed Dept Rep 18, Decision No. 15,427; Appeal of Geithner, 43 id. 450, Decision No. 15,047).  On this record, therefore, I cannot conclude that respondent’s residency determination is arbitrary, capricious or unreasonable. 

As a final matter, petitioners assert that respondent’s determination was based, in part, on hearsay evidence.  Hearsay evidence is admissible in administrative hearings (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Moreover, while petitioners challenge certain statements as hearsay, they have not established any basis for excluding them from the record.  Rather, the nature of the statements go to the weight of the evidence and they have been considered accordingly (see Appeal of Tashoff, 50 Ed Dept Rep, Appeal No. 16,140).

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.