Appeal of RONALD KALNITZ, on behalf of his children MAXWELL and NATHAN, from action of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District regarding residency.

Decision No. 16,600

(March 12, 2014)

Harris Beach, PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Kenmore-Town of Tonawanda Union Free School District (“respondent”) that his children are not district residents. The appeal must be dismissed.

Petitioner’s children, Maxwell and Nathan, have been attending respondent’s schools since entering pre-kindergarten during the 2001-2002 and 2003-2004 academic school-years, respectively. The record indicates that in February 2011, respondent received an anonymous phone call stating that petitioner’s children did not live at his in-district address, but rather at their mother’s residence in Buffalo, outside the district’s boundaries. Based on this information, respondent began an investigation into petitioner’s residency.

According to petitioner, he and his wife, Elizabeth, do not reside in the same home and are “estranged.” They do not have a custodial agreement and have not sought legal separation or divorce. Petitioner, and in an affidavit, Elizabeth, explain that the children reside with petitioner at the in-district address and that their time is essentially evenly split between their parents’ houses. It is further detailed that the children spend significant after-school time at the out-of-district address, as that is where the children’s study room, music room and petitioner’s business office are located. However, petitioner claims the children return to the in-district address approximately four evenings/five days a week and that he is 100% responsible for their care during those times. Petitioner states that since his mother’s life-estate terminated, thereby transferring full title in the in-district property to petitioner, he has undertaken extensive renovations to create space for his children’s academic and musical studies. Petitioner also asserts that

 

his children’s residency is being questioned because of extensive disputes with his neighbors.

By letter dated April 1, 2011, respondent’s former executive director of pupil services informed petitioner that the residency of his children was in question, that an investigation had been conducted, and that a preliminary determination was made that petitioner’s children were not residents of the district. The record indicates that petitioner then provided the district with information based on which respondent continued to allow his children to attend its schools. However, the investigation continued and by letter dated April 2, 2012, the current director of pupil services informed petitioner that another preliminary determination was made that his children were not legal residents of the district and that they would be excluded from school on April 16, 2012. Subsequently, petitioner submitted additional letters and information regarding his children’s residency for respondent’s review. During the pendency of this review, respondent allowed petitioner’s children to continue attend its schools. On or about June 4, 2012, respondent informed petitioner that the district had finally determined his children were not district residents and would be excluded at the end of the 2011-2012 academic year. This appeal ensued. Petitioner’s request for interim relief was denied on July 20, 2012.

Petitioner requests that I order that the district admit Maxwell to summer school, that both children be allowed to engage in fall sports programs, and that both children be admitted to respondent’s schools without the payment of tuition. Respondent requests that I dismiss the petition on procedural grounds for improper service of process and/or based on petitioner failing to sustain his burden of proof showing residency. Respondent maintains that the children live with petitioner and their mother at the out-of-district address. Respondent seeks the award of “reasonable” tuition for eight years of Nathan’s and ten years of Maxwell’s attendance in its schools, as well as orders of protection against harassment or retaliation by petitioner against “any individual who has provided information to the [d]istrict.”

Initially, I must address the procedural issues. Respondent objects to the reply submitted by petitioner, claiming that it contains misstatements of law and fact, as well as new material. Petitioner and Elizabeth submit a response to respondent’s objections dated August 31, 2012. 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, 48 id. 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.

The appeal must be dismissed for lack of proper 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 the petition was served on “Sharon Kelly” on July 9, 2012. Respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR 275.8[a]) and submits an affidavit by Ms. Kelly stating that she is a clerk-typist employed by respondent and has not been designated to accept service of process. In essence, Ms. Kelly asserts that she was told that there was a “delivery for either the superintendent’s office or ‘Christine’” and was handed a brown envelope. Ms. Kelly claims she neither opened the envelope to examine its contents nor did the delivery person inform her that the documents were being submitted for legal service of process purposes. With his reply, petitioner submits the affidavit of his process server, John J. Gangemi. Mr. Gangemi states that he has been serving process for ten years and works for a process serving company. Mr. Gangemi asserts that he asked Ms. Kelly if she was authorized to accept “papers” for the superintendent and that Ms. Kelly allegedly responded that she was and would have “someone” come downstairs soon to get them. The record indicates that Mr. Gangemi then left the brown envelope with Ms. Kelly and that she subsequently delivered it to the District Clerk, Christine Ljungberg.

 

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). When there is no proof that the individual who received the petition is authorized to accept service on behalf of the school board, service on that individual is improper and the appeal must be dismissed (Appeal of J.L., 47 Ed Dept Rep 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580; Appeal of Sailsman, 45 id. 61, Decision No. 15,260).

Petitioner’s process server may have believed that describing the brown envelope to Ms. Kelly as “papers” was the equivalent of saying “legal documents.” However, contrary to petitioner’s contention in his reply that he has “presented proof” that Ms. Kelly was “authorized to accept service on behalf of the school board,” I find that the record clearly indicates that Ms. Kelly was not so authorized and her acceptance of the legal documents was based on a misunderstanding and in error and was in excess of her authority. Thus, service of process failed, and the petition must be dismissed.

I also note that petitioner has requested that I allow Maxwell to attend respondent’s summer school. The time period for attendance at the 2012 session of summer school has passed and, therefore, no meaningful relief can be granted. Thus, this request 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).

Lastly, insofar as respondent requests that I order petitioner to pay tuition or that I issue “orders of protection,” the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). Relief such as tuition payments or protective orders should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

 

In light of this disposition, I need not address the parties’ remaining contentions. However, I note that petitioner retains the right to reapply for admission to the district on his children’s behalf and to submit any additional information or documentation for respondent’s consideration. In the event that petitioner does re-apply, I urge the parties to work together in a cooperative manner.

THE APPEAL IS DISMISSED.

END OF FILE