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Decision No. 16,519


 Appeal of a STUDENT WITH A DISABILITY and his brother, by their mother, from action of the Board of Education of the Monticello Central School District regarding residency.

Decision No. 16,519

(August 26, 2013)

Moritt Hock & Hamroff LLP, attorneys for petitioner, Nancy A. Hampton, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel

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

One of petitioner’s sons is a 21-year-old student with a disability (“the student”) who attended a residential program in Sullivan County during the 2012-2013 school year. The student’s eligibility for special education services ended on June 30, 2013. Petitioner’s other son attended a private high school in New Jersey during the2012-2013 school year.

Petitioner states that she and her husband purchased land for a home on February 3, 2012 so that their family could be closer to the student in New York. Petitioner further states that during the construction of their new home, she, her husband and the couple’s other son remained at their address in New Jersey. Petitioner contends that she began living in the new home on February 2, 2013 and that she subsequently obtained a New York State driver’s license and registered to vote in New York.

On March 13, 2013, petitioner was notified by letter from the district that her request to enroll the student was denied based on respondent’s determination that petitioner and her husband were not residents of the district. This letter resulted from a residency hearing held on March 12, 2013 and cited various factors which led the district “to believe that [petitioner’s] legal domicile[was] not” the New York address but, rather, the New Jersey address. Factors cited by the district included that petitioner and her husband were “still married, not separated or divorced” yet he continued to reside at the New Jersey address with their other son and, further, that although petitioner indicated that the New Jersey home was on the market, no evidence was offered that a contract of sale had been signed or closing date scheduled.

Petitioner states that on or about March 23, 2013,her husband and their other son completed their move into the New York home. She contends that although her husband maintains a private medical practice in New Jersey, he notified the New Jersey Medical Board as well as a university medical center with which he is affiliated, of his move to the New York address. Petitioner also states that her husband has registered to vote and obtained a New York State driver’s license.

By letter dated April 5, 2013, petitioner, through her attorneys, requested a “reconsideration” of the district’s residency decision and also requested that her other son be registered in the district. Petitioner’s request was denied on April 11, 2013. This appeal ensued.

The record indicates that, after filing its answer to the petition on May 2, 2013, the district considered additional documentation submitted by petitioner in support of her residency claim, including her husband’s temporary New York State driver’s license and a New York State Thruway E-Z Pass statement indicating that he had been commuting on a daily basis from the New York address to his medical office in New Jersey, as well as an order appointing petitioner as legal guardian of the student and letters of guardianship issued by the Surrogate’s Court of Sullivan County. Based on its review, the district concluded that petitioner and her husband resided at the New York address as of May 7, 2013 and were therefore district residents as of that date.

Petitioner alleges that the district’s determination that her children are not district residents is arbitrary and capricious and should be reversed. Petitioner requests a determination that her children are district residents entitled to attend the district’s schools without payment of tuition.

Respondent contends that the petition should be dismissed because its March 2013 residency determination was not arbitrary, capricious or unreasonable and because its subsequent determination that petitioner’s children are residents of the district as of May 7, 2013 moots the appeal.

I must first address a procedural issue. During the course of this appeal, both parties submitted evidence regarding events occurring subsequent to service of respondent’s answer. On or about May 14, 2013, petitioner served a reply on respondent in which she addressed several issues including, among other things, respondent’s May 2013determination that her family resided within the district. By letter dated June 3, 2013, respondent requested permission to submit a supplemental affirmation and exhibits addressing the district’s May 2013 residency determination pursuant to §276.5 of the Commissioner’s regulations. To the extent that each party’s submission relates to events that occurred after the submission of respondent’s answer and are directly related to the issue in this appeal, I have accepted these documents pursuant to§276.5 (see Appeal of J.F., 42 Ed Dept Rep 136, Decision No. 14,800). While 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), at the time petitioner submitted her reply in this matter, she responded to the answer as well as to the intervening circumstance of the district’s May 2013 residency determination, which occurred after respondent’s answer was served and was not addressed therein. Under these unique circumstances, as noted above, I will accept petitioner’s information related to the May2013 determination pursuant to §276.5.

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). Since the district has determined that petitioner’s children are district residents, there is no longer an actual controversy at issue and the appeal must therefore be dismissed as moot.

Petitioner asserts that, in light of respondent’s May2013 determination that her family resides in the district, she “still require[s] a decision ... with respect to residency” because respondent’s determination that her children were district residents as of May 7, 2013 “denies[the student] a free appropriate public education from March 23, 2013 through May 6, 2013.” However, petitioner has not demonstrated that she is aggrieved by respondent’s previous residency determinations. To the extent she is asserting that respondent has denied the student a free appropriate public education, her remedy is to request an impartial hearing pursuant to Education Law §4404(1) and 8NYCRR §200.5 (Appeal of a Student with a Disability, 51 Ed Dept Rep, Decision No. 16,286; Appeal of a Student with a Disability, 48 id. 112, Decision No. 15,808).

Although not entirely clear, to the extent petitioner is concerned about possible liability and may seek tuition or reimbursement from respondent in this matter for costs incurred during this period, I note that, in the context of a residency appeal, the Commissioner has historically declined to award a school district tuition for educating anon-resident student or to order a district to reimburse a petitioner for tuition paid on behalf of a resident student who was entitled to attend district schools, holding that the Commissioner lacks authority to award damages (see e.g., Appeal of Upstate Home for Children, Inc., 43 Ed Dept Rep 505, Decision No. 15,067; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). Accordingly, to the extent petitioner may seek payment or reimbursement from respondent for the student’s residential placement between March 23, 2013 and May 6, 2013, that relief should be sought from a court of competent jurisdiction (see Appeal of a Student with a Disability, 41 Ed Dept Rep 52,Decision No. 14,613).