Appeal of VICTOR GOMES, on behalf of his daughter ARIEL, from action of the Board of Education of the Valley Stream Union Free School District Thirteen

regarding residency.

Decision No. 16,535

(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 his daughter, Ariel, is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

In September 2008, petitioner enrolled Ariel in respondent’s schools, indicating that he resided in Valley Stream, New York (“in-district address”). This address was later learned to be owned by petitioner’s parents.

During the 2012-2013 school year, suspicion arose regarding Ariel’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 two separate occasions, one or two unidentified males were observed at the in-district address. While petitioner was not observed at either address during the surveillance period, on six weekday mornings, two children believed to be petitioner’s daughter and nephew were observed leaving the out-of-district residence with an adult female believed to be petitioner’s sister. Ariel was present at school on each of these occasions.

Based on the surveillance report, respondent notified petitioner by letter dated March 6, 2013 that it had determined that petitioner was not a district resident and therefore his daughter was not entitled to attend its schools tuition-free. Respondent invited petitioner to meet and provide evidence in support of his residency. At the meeting on March 12, 2013, petitioner stated that he and his sister live at the in-district address with their children, who “occasionally” sleep at the out-of-district address due to their parents’ work schedules.

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 13, 2013, respondent’s superintendent determined that petitioner was not a district resident and that Ariel 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 he resides at the in-district address, which appears to be a single-family home owned by his parents. To prove his residency, he submits copies of his driver’s license and vehicle registration, 2011 tax form, car insurance statement, bank statement and other bills addressed to him at the in-district address. He also submits a copy of a recent payment of liability/loss insurance for such address, as well as a letter from his mother stating that she owns the in-district address and that petitioner resides at such address and helps pay the mortgage. To further show that his parents own the in-district address, he submits a real property tax bill addressed to his parents and an electric bill addressed to his mother.

Respondent claims that petitioner is not a district resident and that Ariel 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 himself, while accompanied by his sister.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. 19,767), petitioner’s sister claims that she and her son also reside at petitioner’s parents’ in-district residence.

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, Joel Pina, 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 himself. Respondent merely asserts, upon information and belief, that two individuals were observed serving the petition – petitioner and his sister. 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 ground.

Turning to the merits, however, I must dismiss the petition. 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).

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 his burden of proof. Although petitioner has submitted several documents – including a utility bill and a renters’ insurance renewal statement – addressed to him at the in-district address, such documentary evidence is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that such residence is owned by his 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). While respondent’s surveillance evidence is not overwhelming, petitioner was not observed at the in-district address on the three occasions it was surveilled, and petitioner’s daughter was observed leaving the out-of-district address with a woman believed to be petitioner’s sister on six weekday mornings on which she attended school. Other than his assertion at the March 2013 residency meeting that he and his sister live at the in-district address with their children, who “occasionally” sleep at the out-of-district address, petitioner submits no reply or other credible evidence to explain or refute respondent’s surveillance evidence. Therefore, on this record, I cannot find that respondent’s decision 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 his daughter’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE