Appeal of SANDRA GOMES, on behalf of her son TYLAR PINA, from action of the Board of Education of the Valley Stream Union Free School District Thirteen regarding residency.

Decision No. 16,534

(August 28, 2013)

Frazer & Feldman, LLP, attorneys for respondent, Christie

R. Jacobson, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Union Free School District Thirteen (“respondent”)that her son, Tylar, is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

In August 2009, petitioner registered Tylar in respondent’s schools, indicating that she resided in Valley Stream, New York (“in-district address”). This address was later learned to be owned by petitioner’s parents.

During the 2012-13 school year, suspicion arose regarding Tylar’s actual residence, and respondent initiated an investigation into petitioner’s residency. This investigation included surveillance of the in-district address, as well as a suspected out-of-district address in Queens, New York, which is also owned by petitioner’s parents (“out-of-district address”).

The surveillance occurred between May 31, 2012 and January 30, 2013 and consisted of nine days of observation

-two at the in-district address, and seven at the out-of ­district address.¹ On six occasions throughout this time period, an adult female, believed to be petitioner, was observed departing with Tylar and petitioner’s niece from the out-of-district address in the early morning hours and traveling to school. On two occasions, one or two unidentified males were observed at the in-district address.

Based on the surveillance report, respondent notified petitioner by letter dated February 26, 2013 that it had determined that petitioner was not a district resident and therefore Tylar was not entitled to attend its schools tuition-free. Respondent invited petitioner to meet and provide evidence in support of her residency. At the meeting on March 8, 2013, while petitioner stated that she resides with her brother at her parents’ in-district address, she admitted that, when her parents are at work “she is present at the out-of district address to care for her grandmother.” Petitioner also stated that, when she stays at the out-of-district residence with her grandmother, Tylar stays at his father’s in-district residence.

1.Respondent conducted additional surveillance of the in-district address from 6:00 a.m. to 9:00 a.m. on Friday June 21, 2013, during which time no one was observed entering or leaving the residence.

By letter dated March 11, 2013, respondent’s assistant superintendent for business (“assistant superintendent”) determined that petitioner was not a district resident and that her son was not entitled to attend respondent’s schools. This appeal ensued. Petitioner’s request for interim relief was granted on April 11, 2013.

Petitioner claims that she resides at the in-district address, which appears to be a single-family home owned by her parents. She submits a bank statement and other bills addressed to her at the in-district address to prove her residency. She also submits a notarized letter from her mother stating that she owns the in-district address and that petitioner and Tylar reside at such address, as well as a notarized statement from her brother indicating that he resides at the in-district residence with petitioner and Tylar, and that petitioner “contributes to all house utilities including all household needs.”

Respondent claims that petitioner is not a district resident and that Tylar is therefore not entitled to attend its schools tuition-free. Respondent also claims that the appeal must be dismissed for improper service because petitioner served the petition herself, while accompanied by her brother.²

I must address respondent’s request to submit additional evidence pursuant to 8 NYCRR §276.5, regarding an additional day of surveillance of the in-district address in June 2013. 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).note that respondent’s proposed exhibit relates to its original claim and was not previously available. Also, petitioner has not objected to its submission. Consequently, this exhibit will be accepted.

² I note that in another pending appeal (Appeal No. 19,768),petitioner’s brother claims that he and his daughter also reside at petitioner’s parents’ in-district residence. I

Respondent also contends that the petition was improperly served. 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 (8NYCRR §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). Here, petitioner has submitted a signed and notarized affidavit of service by an individual, Carol Guerra, who is not a party to this action, attesting to having personally served a copy of the petition on respondent. Respondent has failed to present any evidence or supporting documentation to prove that the petitioner actually served the petition herself. Respondent merely asserts, upon information and belief, that two individuals were observed serving the petition – petitioner and her brother. In light of petitioner’s submission of a valid affidavit and the lack of evidence to the contrary, I find that the petition was properly served and will not dismiss the appeal on this grounds.

Turning to 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 ahigh school diploma is entitled to attend the public schools maintained inthe district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation ofschool 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. 315,924). “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 tobe 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).

Here, petitioner has not met her burden of proof. On six separate days between May 31, 2012 and January 30,2013, respondent’s investigator observed Tylar and a woman believed to be petitioner at the out-of-district address in the early morning hours on school days. Petitioner’s statements at the March 2013 residency hearing that Tylar stays with his father when she stays with her grandmother at the out-of-district address are inconsistent with the surveillance evidence and petitioner offers no explanation or other evidence to refute such evidence. Although petitioner has submitted several documents - including a utility bill and copies of her driver’s license and bank statements – listing the in-district address, such evidence is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that such residence is owned by her parents (see Appeal of Stewart,47 Ed Dept Rep 92, Decision No. 15,637; c.f. Appeal of Fietta, 52 id., Decision No. 16,444). Based on petitioner’s failure to provide any documentation showing she actually lives at the in-district address, I cannot find that respondent’s decision denying residency was arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her son’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’sconsideration.

THE APPEAL IS DISMISSED.

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