Appeal of HALIM SHARIF, on behalf of his son AMIR, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,518

(August 26, 2013)

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

KING, JR., Commissioner.--Petitioner appeals the determination of the City School District of the City of New Rochelle (“respondent”) that his son, Amir, is not a district resident. The appeal must be dismissed.

Amir has attended respondent’s schools since September2011. In January 2013, respondent began to question petitioner’s residency because mail sent from its high school to petitioner’s alleged in-district address was returned as “undeliverable” by the United States Postal Service (“USPS”), after a forwarding order to a post office box had apparently expired.1

The record indicates that, when respondent’s attendance teacher (“teacher”) performed a home visit at the in-district address on January 9, 2013, no one answered the door. On January 14, 2013, petitioner and the teacher spoke by telephone, and petitioner explained that the letter was returned by USPS because he was out of town. On January 17, 2013, petitioner and met with the teacher and provided bills and his New York State insurance card and vehicle registration. However, the insurance card and the registration were expired.

On January 28, 2013 at 7:30 a.m., the teacher observed the in-district address and did not observe Amir leaving for school, although he was later verified as being in attendance at school that day.

Later that day, the teacher spoke to individuals associated with the in-district address’s managing agency and its holding company. After reviewing company records, it was determined that there was no record of petitioner as either a past or current tenant. This information was reconfirmed on February 25 and also in writing by the holding company on February 26, 2013. Also on January 28, 2013, the teacher visited an “alternative” out-of-district address in Yonkers. While there was no answer at the door, the teacher noticed a package addressed to Amir from “Urban Outfitters.” The Yonkers address is that of Amir’s mother and the record indicates that prior to his enrollment in respondent’s school district, Amir resided at the Yonkers address.

On February 27, 2013, the teacher spoke with a custodian at the in-district address who advised her that Brenda Nixon resides in the apartment and that he has never seen a “young man” there. When she attempted to visit the Yonkers address that day, again, no one answered the door. Finally, on March 1, 2013, the teacher verified that the Yonkers address was Amir’s mother’s residence and that she was listed on his emergency contact card and “bill to” address with the district. By letter dated March 12, 2013 and sent to the Yonkers address, respondent’s director of pupil services informed petitioner that his son was not a district resident and would be excluded from respondent’s schools on March 22, 2013. This appeal ensued. Petitioner’s request for interim relief was granted on April 3, 2013.

Petitioner claims that his son is a district resident entitled to attend respondent’s schools tuition-free. Petitioner asserts that he and Amir are Ms. Nixon’s roommates and that Ms. Nixon “handles all custodial matters as the tenant on record.” Therefore, petitioner explains, he has had no contact with the management agency, the holding company or the custodian. He submits an unsworn, though notarized, letter from Ms. Nixon in which she states that petitioner is her roommate and that petitioner and Amir live in her apartment. Petitioner also submits copies of his New York State insurance cards, vehicle registration and driver’s license to support his claims of residency and to counter respondent’s claims that he had produced only expired documents. Petitioner asserts that irregularities in the mailing of letters to his in-district address or outright failure to mail them caused USPS not to deliver respondent’s letters to him. Respondent alleges that petitioner’s appeal should be dismissed because petitioner is not a district resident and new material and exhibits contained in petitioner’s reply.

1 Throughout respondent’s submissions, the number for petitioner’s alleged in-district address is listed interchangeably as both 305 and 306. Based on the documentary evidence submitted, I find this to be a typographical error and that respondent intends to list number 306 as the only alleged address.

Before discussing the merits, I must first address procedural issue. 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, 48id. 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.

In addition, by letter dated April 11, 2013, respondent submitted a sur-reply affirmation for consideration. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). A sur-reply, however, may not improperly buttress allegations that should have been asserted in an answer (see Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Butler and Dunham, 50 id., Decision No. 16,103). As noted above, I have not considered any portion of petitioner’s reply that is not responsive to new material or affirmative defenses in the answer. To the extent that any portion of the sur-reply is in response to claims improperly raised in the reply, I decline to accept or consider respondent’s sur-reply affirmation.

Petitioner’s appeal must be dismissed. 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 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).

The pivotal issue in this appeal is whether or not petitioner has met his burden of proving that he and his son are physically present and intend to reside at Ms. Nixon’s in-district apartment. The only proof submitted by petitioner, other than his own conclusory statements, are Ms. Nixon’s unsworn, notarized letter and two distinctly different New York State automotive insurance cards (one of which is obscured), a New York State driver’s license and vehicle registration. However, these documents are not dispositive. While they may demonstrate some contacts with the alleged in-district address, on this record, I do not find that these documents adequately establish petitioner’s and his son’s physical presence in the district or continuing ties to the community demonstrating that petitioner and his son are district residents (see e.g., Appeal of J. V. 44 Ed Dept Rep 421, Decision No. 15,218).

Although petitioner claims his living arrangements with Ms. Nixon are private and on that basis he attempts to explain why the management agent and holding company are unaware of his presence in the apartment, he fails to explain why, if he is permanently residing in the apartment, mail addressed to him at the apartment is forwarded to a post office box. Other than his bold assertion that Amir resides with him, petitioner offers no explanation of the custodial arrangements between him and Amir’s mother and no explanation of why Amir allegedly moved from the Yonkers address to the in-district address.

While respondent’s evidence is not overwhelming, it does indicate that respondent was not able to verify petitioner and his son’s presence at the in-district residence. Respondent submits evidence of home visits made to petitioner’s alleged in-district address at which petitioner and his son were not present, as well as statements by individuals employed at the apartment complex indicating that petitioner and his son are not residing at the apartment complex, including the statement by a custodian that he had never observed a teenage boy at the complex. Petitioner offers no evidence or explanation to refute such evidence or to demonstrate that his son was never physically present in the in-district residence other than the unsworn letter from Ms. Nixon.

In sum, the evidence in the record is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner’s son does not reside in respondent’s district. Petitioner has failed to carry his burden of proof.

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on his son’s behalf at any time and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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