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Decision No. 16,612

Appeal of JOANNA RAFIQ, on behalf of her daughter SADIA, from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Decision No. 16,612

(June 20, 2014)

Ingerman Smith, L.L.P., attorneys for respondent, Carolyn J. Grimaldi, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that her daughter, Sadia, is not a district resident. The appeal must be dismissed.

During the 2013-2014 school year, Sadia was a second-grade student attending respondent’s Mamaroneck Avenue Elementary School. Petitioner asserts that she resides in the district in her mother’s house with her two children, and that Sadia occasionally stays with her “other grandmother,” who resides in the Bronx (“Bronx address”).

According to respondent, on or about January 22, 2013, respondent received information that Sadia was not residing in the district. As a result, respondent commenced a residency investigation, which included retaining a private investigator to conduct surveillance from February 13, 2013, through approximately April 12, 2013 (“first surveillance period”). Over the course of the first surveillance period, petitioner and her husband were observed transporting Sadia from the elementary school to the Bronx address on March 20 and April 1, 2, and 11, and from the Bronx address to the elementary school on April 12. Petitioner and Sadia were not observed at the Mamaroneck address during the first surveillance period.

As a result, by letter dated April 15, 2013, respondent’s assistant superintendent for business operations (“assistant superintendent”) informed petitioner and her husband that Sadia would be excluded from school, effective April 26, 2013, based upon surveillance documenting that the family resided at the Bronx address. The April 15, 2013 letter, which was mailed to the Bronx address, further advised that the assistant superintendent was prepared to meet with petitioner and her husband should they wish to discuss the determination.

On April 22, 2013, the assistant superintendent met with petitioner, her husband, her mother, and her attorney. According to respondent, petitioner stated during the meeting that she resided at the Mamaroneck address, but that she and her husband had been temporarily residing at the Bronx address while renovations were completed on the Mamaroneck address. According to respondent, petitioner, her husband, and her mother stated that the renovations would be completed by the middle of May 2013, at which time petitioner, her husband, and Sadia would permanently return to the Mamaroneck address. Based on these assurances, respondent agreed to continue Sadia’s enrollment in the district for the remainder of the 2012-2013 school year with the understanding that the family would return to the Mamaroneck address after the renovations were completed.

By letter dated May 20, 2013, the assistant superintendent memorialized the agreement from the April 22, 2013 meeting and inquired whether the family had moved back to the Mamaroneck address. Thereafter, respondent’s private investigator commenced a second surveillance period from approximately May 28 through June 11, 2013. On May 28 and 30 and June 4, 2013, petitioner and her husband were observed retrieving Sadia from the elementary school, driving to the Mamaroneck address and pulling into the driveway, and then driving to the Bronx address and entering the residence. On the evening of June 10, 2013, petitioner’s and her husband’s vehicles were observed in front of the Bronx address, and on the morning of June 11, 2013, petitioner’s husband was observed transporting Sadia from the Bronx address to school.

At the start of the 2013-2014 school year, respondent commenced a third surveillance period from approximately September 18 through September 23, 2013. On September 19, 2013, petitioner was observed transporting Sadia from school to the Bronx address, and on the evening of September 20, 2013, petitioner’s husband was observed at the Bronx address. On the evening of September 23, 2013, petitioner and her family were observed at the Bronx address. By letter dated September 25, 2013, which was hand-delivered to petitioner that same day, respondent’s superintendent advised that, based upon surveillance, Sadia would be excluded from school effective October 4, 2013, unless petitioner could substantiate her residence in the district or remit tuition for Sadia’s continued enrollment. Following receipt of said letter, respondent’s investigator observed petitioner on the morning of September 26, 2013, transporting Sadia to school from the Mamaroneck address for the first time.

In response to the superintendent’s September 25, 2013 letter, petitioner supplied a 10-year residential lease dated August 31, 2011, a landlord affidavit from petitioner’s mother, and copies of her driver’s license and a cable bill, listing petitioner’s residence as the Mamaroneck address.

By letter dated October 1, 2013, the assistant superintendent determined that Sadia was not a district resident. This appeal ensued. Petitioner’s request for interim relief was denied on October 15, 2013.

Petitioner asserts in her petition that she and Sadia reside with petitioner’s mother and petitioner’s son within the district, and that petitioner’s mother helps her support Sadia. Petitioner requests a determination that Sadia is a district resident and is entitled to attend school tuition-free.

Respondent denies that petitioner and Sadia reside at the Mamaroneck address and asserts that petitioner fails to state a claim upon which relief can be granted. Respondent maintains that its determination was rational and reasonable and is supported by the record, and therefore, should be upheld.

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). The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

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 Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On the record before me, I am unable to conclude that petitioner has met her burden of proof. Petitioner’s claims are contradicted by respondent’s surveillance and evidence collected over a nearly six-month investigation. As noted above, petitioner and her husband were not observed at the Mamaroneck address until after petitioner received the superintendent’s September 25, 2013 letter. Prior to that time, petitioner and/or her husband were observed on multiple occasions transporting Sadia between the elementary school and the Bronx address. These observations are consistent with respondent’s determination that petitioner, her husband, and Sadia reside at the Bronx address.

Together with her petition, petitioner submits only copies of her driver’s license, a cable bill, and a voter registration printout listing the Mamaroneck address. In support of its position, respondent notes that a discrepancy exists between the landlord affidavit petitioner submitted on September 27, 2013, and a previous landlord affidavit she submitted in April 2011. In her April 2011 affidavit, petitioner’s mother averred that the lease with her daughter was from March 1, 2011 through February 28, 2013, while her September 2013 affidavit states that the 10-year lease, dated August 31, 2011, runs from September 1, 2011, through August 31, 2021. Respondent also submits additional documentary evidence, apparently complied for purposes of this appeal. Respondent submits evidence indicating that the vehicles driven by petitioner and her husband over the course of its surveillance are registered to petitioner and her husband at the Bronx address and that one of the vehicles has a registration as recent as April 10, 2013. Respondent also submits evidence of a public records search indicating that petitioner filed a legal proceeding on August 20, 2013, listing the Bronx address as her address; the results of a “People Finder” search indicating that, as of September 27, 2013, the last known address listed for petitioner and her husband is the Bronx address; and the results of a “Yellow Pages” search indicating that the telephone number on file with the district for petitioner is listed with the Bronx address. Significantly, petitioner submitted no reply or other evidence to refute or otherwise explain respondent’s evidence.

On this record, petitioner has not carried her burden of establishing her physical presence and intent to remain in respondent’s district. Accordingly, I will not disturb respondent’s determination that Sadia is not a district resident.

In light of this disposition, I need not address the parties’ remaining contentions.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on Sadia’s behalf at any time should circumstances change, and to submit any new information or documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y) (see e.g., Appeal of Charles, 53 Ed Dept Rep, Decision No. 16,606).