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Decision No. 16,382

Appeal of L.D., on behalf of her son D.D., from action of the Board of Education of the Ramapo Central School District regarding residency.

Decision No. 16,382

July 27, 2012

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Ramapo Central School District (“respondent”) that her son, D.D., is not a district resident.  The appeal must be dismissed.

D.D. is enrolled in respondent’s school district and attends Gateway Academy, a program offered by respondent through the Board of Cooperative Educational Services for Rockland County (“Rockland BOCES”).  Petitioner, the custodial parent of D.D., alleges that she and D.D. reside with her mother in Montebello (“Montebello address”) within respondent’s district.  In January 2012, respondent began a residency investigation and conducted surveillance of the Montebello address on 10 different days from January 30 through February 28, 2012.  Neither petitioner nor D.D. was observed at that address on any of those days, yet D.D. attended school on six of those days.  Respondent’s investigator also found a “ten day notice for rent and termination of tenancy” dated February 9, 2012 issued to petitioner regarding an apartment located in Manhattan (“Manhattan address”).  Additionally, the principal of Gateway Academy reported that D.D. frequently arrived late to school and appeared tired.  She further reported that, when asked for an explanation, D.D. stated that it was “because he was coming from the [c]ity.”  Finally, the director of pupil personnel services (“director”) spoke with D.D.’s probation officer who stated that she conducted home visits with D.D. at “his home in Manhattan.”

By letter dated March 7, 2012, the superintendent informed petitioner of his determination that she and D.D. were not district residents and, therefore, D.D. could no longer attend respondent’s schools after March 16, 2012.  According to the superintendent, the letter provided petitioner an opportunity to respond.  However, the letter was not submitted by either party.  The March 7, 2012 letter was sent by certified mail-return receipt requested to the Montebello address but was returned to respondent stamped “unclaimed and unable to forward.”  In light of the returned letter, it is unclear how petitioner became aware of respondent’s intent to exclude D.D.; nevertheless, this appeal ensued.  Petitioner’s request for interim relief was granted on April 20, 2012.

Petitioner alleges that she and D.D. are residents of respondent’s district and that D.D. is therefore entitled to attend its schools. Petitioner submits a copy of her license, car registration, insurance identification card, two letters and a statement from her mother as evidence that she resides at the Montebello address.

Respondent contends that the appeal must be dismissed for improper service and is also, therefore, untimely.  Respondent further asserts that petitioner failed to state a cause of action and that its residency determination is proper.

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 affidavit of service indicates that the petition was served upon Patrick Breen (“Breen”) on April 12, 2012 at 45 Mountain Avenue, Hillburn, New York.  Breen is the principal of respondent’s Suffern High School.  A building principal is not one of the individuals authorized by §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be properly effected.  Indeed, respondent denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]) and submits affidavits from both Breen and the board president stating that Breen is not authorized to accept service.  Petitioner submits no reply to respondent’s claim of defective service.

In his affidavits, Breen also states that he was served on April 12, 2012 at his home in Westchester County, instead of at the address stated on the affidavit of service.  Additionally, the affidavit of service does not appear to be signed by the process server, Tiwana Robinson.  Although the affidavit of personal service is notarized, it appears that Breen signed the affidavit in the space allotted for the process server and deponent, Tiwana Robinson.  Thus, the affidavit of service submitted by petitioner, itself, is defective and does not establish that service was properly effected upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Consequently, because service is defective the appeal must be dismissed (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

In light of this disposition, I need not address the parties’ remaining contentions.