Appeal of MARILYN BATIZ, on behalf of her children, KEANU MAYMI and BRIANNACLIVILLES, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,498

(July 8, 2013)

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

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her children, Keanu Maymi and Brianna Clivilles, are not district residents. The appeal must be dismissed.

Petitioner claims that she owns an apartment within the district, which, for economic and personal reasons, she currently leases to another individual. Petitioner admits that she currently resides outside the district in the Bronx. By letter dated February 1, 2013, respondent’s director of pupil services (“director”) informed petitioner that she had received information that petitioner no longer resided within the district. Petitioner was given until February 25, 2013 to submit information in support of her residency within the district. It is unclear from the record whether petitioner did so.

By letter dated February 26, 2013, respondent’s director informed petitioner of her determination that petitioner was not a district resident and that her children would be excluded from the district’s schools effective March 8, 2013.

By letter dated March 4, 2013, petitioner wrote to respondent’s superintendent and indicated that she was not aware that her non-residence within the district would result in her children being excluded from the district schools. Petitioner requested that her children be permitted to graduate with their peers next year.

By letter dated March 5, 2013, respondent’s director again informed petitioner of her determination that petitioner was not a district resident and indicated that her children would be excluded from school effective March

22, 2013. This appeal ensued. Petitioner’s request for interim relief was granted on April 15, 2013.

Petitioner admits that she resides outside the district, but states that she intends to return to her in-district apartment, on which she pays taxes, on January 1,2014. Petitioner maintains that she cannot move back to the in-district apartment any earlier because it is sublet to a single mother. She also maintains that it would not make sense for her children to have to start over at a new school.

Respondent maintains that the appeal must be dismissed for improper service and because petitioner admits that she does not reside within the district.

The appeal must be dismissed for improper 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 service on respondent was attempted by leaving the petition and notice of petition with Anthony Bongo and “Mr. Hildebrand,” the principal of Isaac E. Young Middle School and the House IV principal of New Rochelle High School, respectively. Respondent denies that such individuals are authorized to accept service. Petitioner did not submit a reply to contradict respondent’s assertion of improper service. When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Terry, 50 Ed Dept Rep, Decision No. 16,117;Appeal of Villanueva, 49 id. 54, Decision No. 15,956;Appeal of DeMarco, 48 id. 252, Decision No. 15,850).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on 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 §3202is 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 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 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). A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450). To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166,Decision No. 15,827; Appeal of Hussain, 46 id. 108,Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In this case, petitioner asserts that she owns an apartment in the district, but that she currently resides outside the district. The central question in this appeal, therefore, is whether her absence from the district is temporary. Petitioner asserts that she owns and pays taxes on the in-district apartment and, to support this claim, submits mortgage interest statements from 2011 and 2012 on which her name is listed with another individual as mortgage borrowers for that property. However, while such documents indicate that petitioner may share an ownership interest in the residence, ownership of property in a district alone does not confer residency status. I do not find that these documents adequately establish continuing ties to the community demonstrating that petitioner’s absence from the district is temporary (see Appeal of J.V.,44 Ed Dept Rep 421, Decision No. 15,218).

Petitioner also explains that she moved from the district to save money and because, as a foster parent, she needed more living space. Petitioner further asserts that she is no longer a foster parent and does not need the extra living space, but that she cannot return to the in-district apartment until January 1, 2014 when her tenant’s lease expires. However, petitioner’s claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or, at the very least, a concrete and realistic plan to do so (Appeal of J.V., 44 Ed Dept Rep421, Decision No. 15,218; Appeal of Collins, 44 id. 74,Decision No. 15,103). Petitioner submits no such evidence or plan, and her general statement of an intent to return to the in-district apartment is insufficient to establish residency. Indeed, to substantiate her claim, petitioner submits only an unsigned agreement purporting to rent the apartment beginning on January 1, 2013. I note that, while the lease agreement is entitled “Monthly Rental Agreement, ”the words “month-to-month” in the body of the agreement are crossed out and the document does not otherwise reference a specific lease term and contains no end date.

Since petitioner resides outside the district in the Bronx and has failed to present any evidence of a concrete and realistic plan to return, I find that she has failed to prove that she is a resident of respondent’s district and to rebut the presumption that her children reside with her outside the district. A school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Weisberg, 39 Ed Dept Rep 737, Decision No. 14,365, judgment granted dismissing petition to review, Weisberg v. Mills et al., Sup. Ct., Albany Co., Special Term [Malone, J.], November 27, 2000, n.o.r.).

In sum, I find that petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious.

While the appeal must be dismissed on procedural grounds, I note that petitioner retains the right to reapply to the district for admission of her children at any time, and to present any information or documentation for respondent’s consideration (see Appeal of Williams, 51Ed Dept Rep, Decision No. 16,302; Appeal of Braxton-Strohman, 50 id., Decision No. 16,183).

THE APPEAL IS DISMISSED.

END OF FILE