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Decision No. 16,401

Appeal of YVONNE CANDELARIA, on behalf of her children STEPHANIE CANDELARIA, KEILYNN CANDELARIA and ISABELLA COLON, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,401

(August 30, 2012)

Keane & Beane, P.C., attorneys for respondent, Stephanie L. Burns, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of White Plains (“respondent”) that her children are not district residents.  The appeal must be dismissed.

Petitioner claims that she and her children reside with her fiancé, Glenn Tepper, at his apartment within respondent’s district. Stephanie and Keilynn began attending school in the district in September 2011.  In January 2012, petitioner registered Isabella to attend school, beginning in September 2012.  At that time, the district received information from Mr. Tepper’s neighbor indicating that the students did not reside at his address.  Thereafter, the district conducted a residency investigation.  The investigation revealed certain records listing petitioner’s address in Yonkers, outside the district (“Yonkers address”).  The district conducted surveillance on five different days in February and March 2012.  Each day, petitioner and her children were observed at the Yonkers address. 

By letter dated March 23, 2012, the assistant superintendent notified petitioner that her residency was in question and provided her an opportunity to present information regarding her residency status.  Petitioner met with district staff on March 29, 2012 and provided a letter to the district dated March 30, 2012.   By letter dated May 9, 2012, the assistant superintendent notified petitioner of his determination that she and her children were not district residents and that Stephanie and Keilynn’s final day of attendance would be May 18, 2012.   This appeal ensued. Petitioner’s request for interim relief was granted on May 18, 2012. 

Petitioner asserts that she resides with Mr. Tepper in respondent’s district but stays at her niece’s apartment outside the district at times to help Isabella adjust to the move.  Petitioner also states that she and Mr. Tepper are attempting to find somewhere “larger, more accommodating, yet affordable” to live within the district.  Petitioner seeks a determination that her children are district residents entitled to attend its schools without payment of tuition.

Respondent asserts that petitioner and her children reside outside the district and that its residency determination is in all respects proper.  Respondent further states that the results of surveillance conducted after interim relief was granted continue to indicate that petitioner lives in her niece’s apartment outside the district. 

On August 7, 2012, petitioner served an application, pursuant to §276.5 of the Commissioner’s regulations, to submit additional information in this appeal. The information includes a lease, dated July 26, 2012, whereby petitioner and Mr. Tepper rented an apartment purportedly in the district commencing September 1, 2012 through August 30, 2014.  However, petitioner stated that she is moving on August 18, 2012.  She also submits an interim driver’s license and registration reflecting the new address and asserts her intent to change other addresses-of-record, such as her automobile insurance, to reflect her new residence, which she will submit to the appropriate office in respondent’s district.  

By letter dated August 14, 2012, respondent objected to petitioner’s submissions and argues that they provide no evidentiary value to its determination of the children’s residence during the 2011-2012 school year.

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).

I will not accept petitioner’s new information for consideration with regard to respondent’s residency determination concerning the 2011-2012 school year.  However, I will accept it for the limited purpose of determining whether the instant controversy has been rendered academic. 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Petitioner’s changed circumstances for the 2012-2013 school year renders the issue of respondent’s residency determination for 2011-2012 school year moot, as it was based upon a state of facts that no longer exists.  I further note that respondent states that it will consider whether this new circumstance establishes petitioner’s residence in the district for the 2012-2013 school year.  Consequently, any decision regarding respondent’s residency determination concerning the 2011-2012 school year would be advisory in nature.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

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