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Decision No. 16,304

Appeal of ELISSA STAGNO, on behalf of her daughter LEANNA, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 16,304

(September 19, 2011)

Nassau/Suffolk Law Services Committee, Inc., attorneys for petitioner, Jane C. Reinhardt, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Kathryn J. Maier Esq., of counsel

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

The record indicates that, during the 2010-2011 school year, Leanna attended third grade in respondent’s schools as a resident student.  Petitioner asserts that she and Leanna reside with petitioner’s parents on Sunset Road within respondent’s district (“Sunset Road address”).

On April 5, 2011, the deputy superintendent of schools advised petitioner that Leanna’s residency was in question.  On April 14, 2011, respondent conducted a residency hearing, at which petitioner appeared with counsel and testified in support of her claim that she and Leanna resided with her parents in the district.  By letter dated April 15, 2011, the deputy superintendent notified petitioner of his determination that petitioner and Leanna resided in Copiague, New York and were not, in fact, district residents.  Respondent permitted Leanna to remain in school until May 6, 2011.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 6, 2011.   

Petitioner asserts that she and Leanna reside with her parents at the Sunset Road address within respondent’s district.  Petitioner acknowledges that she has stayed overnight on occasion at her friend’s home in Copiague, outside respondent’s district (“Copiague address”), and that her car was frequently present there during the period respondent conducted surveillance because it was being repaired by her friend.  

Respondent maintains that petitioner and Leanna are not district residents but, instead, reside in Copiague.  Respondent contends that its determination is rational, that petitioner has failed to meet her burden of proof and that petitioner has not transferred custody of Leanna to her parents, who are district residents.

I must first address several procedural issues.  Respondent challenges the submission of petitioner’s affidavit with her 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).  Petitioner’s affidavit addresses allegations raised in respondent’s answer regarding the sufficiency of her testimony at the hearing.  Petitioner’s affidavit, therefore, is appropriately included with her reply and has been considered. 

Further, as part of her petition, petitioner submitted an affidavit by her mother stating that petitioner and Leanna live with her at the Sunset Road home.  Petitioner also provides an affidavit by William Raber, owner of the Copiague address, stating that petitioner is a friend of his brother, James, and that she occasionally visits him at the Copiague address.  She also provides an affidavit by James Raber who affirms that he resides at the Copiague address with his brother and had been providing car repairs on petitioner’s vehicle during the fall of 2010 through the winter of 2011.  Both William and James affirmed that neither petitioner nor Leanna reside at the Copiague address.

Respondent objects to the submission of these affidavits, as they were not before the deputy superintendent at the time he made his determination.  However, nothing precludes petitioner from submitting such affidavits in support of her petition.  Moreover, I note that the affidavit by petitioner’s mother reiterates her statements in the “Owner/Lessor’s Affidavit” previously submitted to the district (Hearing Exhibit 5).  Similarly, the two Raber affidavits are consistent with petitioner’s claim throughout the residency proceedings that she does not reside in Copiague.  Additionally, although the three affidavits were not previously considered, respondent has had ample opportunity to address them in its answer.  Thus, I have considered the documents and will afford them due weight (Appeal of Landon, 49 Ed Dept Rep 23, Decision No. 15,948).

Finally, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  By letter dated May 11, 2011, petitioner’s attorney requested that I consider an additional affidavit.  The additional affidavit appears to relate to events that occurred prior to the commencement of this appeal and the application does not provide a satisfactory explanation why such could not have been provided with the petition.  Therefore, I have not considered the affidavit.

Turning to the merits, 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).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

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).

On the record before me, I find sufficient evidence to establish that petitioner and Leanna reside at the Sunset Road address within the district.  In support of her claim of residency, petitioner submits a 2002 paternity petition, a 2003 custody/visitation petition, a 2003 Department of Health amendment to Leanna’s birth certificate, a driver’s license issued in 2004, a 2007 title to petitioner’s car, a 2010 car registration and recent 2011 medical and dental bills, all consistently reflecting the Sunset Road address.  Petitioner also submits various letters addressed to her at Sunset Road.  While the letters are not dispositive of petitioner’s residency, the other documentation is significant and probative.  I note that the documentation spans a period of nine years, consistently reflects the Sunset Road address over that period and supports petitioner’s claim that she has always resided with her parents.  Further, petitioner submits the aforementioned affidavit by her mother averring that petitioner resides with her.  In further support of petitioner’s assertions, the two Raber affidavits aver that she does not reside at the Copiague address.  At the hearing, petitioner testified that she keeps no clothing or belongings at her friend’s house in Copiague and there is no evidence to the contrary in the record.  Taken in its entirety, petitioner’s evidence is persuasive.

Respondent relies primarily on surveillance it obtained over a period of approximately six months – from October 27, 2010 through April 14, 2011.  However, I do not find the surveillance dispositive.  Respondent states that, although surveillance was conducted on 19 days, petitioner was observed only once at the Sunset Road address.  However, on nine of the 19 dates, surveillance took place only at the Copiague address and not at the Sunset Road address.  While petitioner was observed four times at the Copiague address, there was a significant span of time between each observation despite consecutive days of surveillance.  Petitioner’s observed presence in Copiague on only four occasions over six months is consistent with her testimony that she has stayed occasionally at her friend’s house there.  Overnight visits with friends or relatives outside the district do not establish a change of residency (Appeal of Landon, 49 Ed Dept Rep 23, Decision No. 15,948; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828; Appeal of Sims – Edwards, 48 id. 67, Decision No. 15,795).

Respondent relies on observations of petitioner’s Saturn parked outside the Copiague address on 11 days at various hours, although petitioner was not seen there at those times.  Petitioner offers a plausible explanation, supported by James Raber’s affidavit, that Mr. Raber often repaired or borrowed her car during the relevant time period.  Accordingly, I cannot conclude that petitioner was physically present at the Copiague address solely by virtue of her car’s presence at that address.  Further, I note that the surveillance report indicates that petitioner was also seen driving a Nissan, which car was observed at the Sunset Road address on seven surveillance days.  Respondent’s surveillance information, therefore, is inconclusive, particularly in view of the documentation and explanations provided by petitioner.

Respondent challenges petitioner’s assertions regarding the number of times she stayed at the Copiague address and the circumstances therefor (i.e., repair of her car).  My review of petitioner’s testimony reveals that, although somewhat confusing at times, petitioner did state that she stayed at the Copiague address “occasionally” and “a couple times a year.”  When attempting to explain the circumstances therefor, she was interrupted before she was able to finish her statement.  Respondent also asserts that petitioner inconsistently testified that James Raber did not have a key to her car, given that Mr. Raber’s affidavit states that he sometimes borrowed her car and also that surveillance showed the car had been moved to different positions in front of Raber’s house.  Petitioner explains in her reply affidavit that her testimony was intended to indicate only that Mr. Raber was not in possession of his own key.  Petitioner also avers that she was nervous and anxious at the hearing – borne out by a reading of the transcript – and, thus, was sometimes imprecise in her testimony.  I find the clarification and explanations provided in petitioner’s reply affidavit plausible.

After careful review of the totality of the record, I find the evidence insufficient to support respondent’s determination that petitioner is not a district resident.  I am not persuaded that petitioner resides at the Copiague address but, instead, conclude that she resides at the Sunset Road address.  Accordingly, petitioner has carried her burden.  Respondent’s determination, therefore, is arbitrary and capricious and must be set aside.


IT IS ORDERED that respondent permit petitioner’s daughter, Leanna, to attend school in the Massapequa Union Free School District without payment of tuition.