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Decision No. 16,792

Appeal of M.S., on behalf of her daughter A.S., from action of the Board of Education of the Massapequa Union Free School District regarding residency and transportation.

Appeal M.S., on behalf of her son A.S., from action of the Board of Education of the Massapequa Union Free School District regarding residency and transportation.

Decision No. 16,792

(July 20, 2015)

Guercio and Guercio, LLP, attorneys for respondent, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioner challenges a determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that her children are not homeless within the meaning of the McKinney-Vento Homeless Assistance Improvements Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  Because these appeals present similar issues of fact and law, they are consolidated for a decision.  The appeals must be dismissed.

Petitioner and her children resided within respondent’s district until approximately June 2011, when her husband lost his job and the owner of the property they were renting listed the property for sale, forcing them to relocate.[1]

Petitioner and her children moved into a home owned by her husband’s colleague, which was located outside of respondent’s district.  Apparently, this home was subject to foreclosure but, until such time as the property was sold, petitioner and her family were permitted to live there in return for maintaining the premises and paying utilities.  On or about August 24, 2011, petitioner advised respondent that she and her family were homeless and she was designating respondent’s district as her children’s’ district of attendance.

By letter dated August 3, 2012, respondent’s newly appointed homeless liaison asked to meet with petitioner to discuss her living arrangements.  At the meeting, petitioner confirmed that her situation hadn’t changed and she and her family still resided at the out-of-district home.

By letter dated January 30, 2015, the liaison requested updated information regarding the family’s housing status, in order to evaluate their needs for the 2015-2016 school year.  The letter stated that petitioner had until February 13, 2015 to provide such information.  By telephone, on February 11, 2015, and by letter dated February 13, 2015, petitioner informed the liaison that nothing had changed and that she and her family continued to reside at the out-of-district home.  By letter dated February 24, 2015, respondent’s deputy superintendent notified petitioner of his determination that she and her children were no longer homeless.  This appeal ensued.  Petitioner’s request for interim relief in each appeal was granted on April 3, 2015.

Petitioner claims that her residence is not fixed, due to the fact that the property is under foreclosure.

Respondent contends that petitioner has failed to meet her burden of proof and that she fails to set forth a clear and concise statement of her claim.  Respondent maintains that neither petitioner nor her children reside within the district and that they are no longer homeless within the meaning of McKinney-Vento.

Education Law §3209(1)(a) defines homeless child as:

(1)a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii)abandoned in hospitals;

(iv)awaiting foster care placement;


(v)a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2)a child or youth who has a primary night-time location that is:

(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

(ii)a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....

Both Education Law §3209 and §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.

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).

Petitioner’s children do not fit the definition of homeless children under either State or federal law.  They have a fixed, regular night-time residence with their parents and there is no evidence in the record, nor does petitioner even allege, that such residence is inadequate.  In fact, the record indicates that the residence is a home occupied only by petitioner, her four children and her husband.  Petitioner does not allege nor offer any evidence to the contrary.    While it is unfortunate that petitioner was forced to move from her in-district residence due to financial hardship, there is no proof in the record that she currently lives in the kind of shelter or other accommodation described in Education Law §3209.  For these reasons, and as set forth below, petitioner has failed to demonstrate that her children lack a fixed, regular and adequate night-time residence and are homeless (see Appeal of T.C., 53 Ed Dept Rep, Decision No. 16,502; Appeal of a Student with a Disability, 52 id., Decision No. 16,404; Appeals of L.B., 50 id., Decision No. 16,129).

Petitioner has also not established that her current residence is temporary or transitional.  The record indicates that petitioner has been residing in the home of her husband colleague since the summer of 2011 until the present.  It contains no evidence that petitioner needs to vacate her current residence or that there is a fixed time limit as to how long she can reside there.  (Appeal of A.N.Z., 53 Ed Dept Rep, Decision No. 16,537; Appeal of a Student with a Disability, 52 id., Decision 16,404; Appeals of L.B., 50 id., Decision No. 16,129). 

Petitioner submitted copies of two letters to the district, her own and that of the property owner, stating that the owner may lose the property to foreclosure.  In her letter, petitioner stated that “we feel like squatters even though we are maintaining the home ....  At any given moment the bank can take possession and my family will have nowhere to go.”  However, I note that an initial notice of pendency of foreclosure was in place since September 28, 2010, and petitioner, nevertheless, has resided at the premises continuously for four years, since the summer of 2011. 

The initial notice of pendency expired in 2013.  By letter dated May 5, 2015, petitioner requested permission to submit a copy of a renewal of the notice of pendency that was filed on March 25, 2015, two days before the petitions herein were served.  Respondent objects to the submission.  However, petitioner is not a party to the foreclosure proceeding, would not have received the notice directly, and asserts that she did not have the information prior to commencing the appeals.  Consequently, I have accepted petitioner’s additional information for consideration. 

However, the renewal of the notice of pendency does not demonstrate that petitioner and her family will lose their housing imminently or at any particular time in the near future.  Petitioner and her family can continue to reside at the out-of-district house, as long as they maintain the premises and pay utilities, pursuant to their arrangement with the owner.  In this regard, in the owner’s letter attached to the verified petitions, he states in relevant part, “The [family] agree[s] to move as soon as the bank notifies me of the sale.  Until then they may stay as long as they keep up the house and property ....”   As noted, the foreclosure process has been ongoing for almost five years, without resolution (see Appeal of A.W., 53 Ed Dept Rep, Decision No. 16,559; Appeal of S.D., 53 id., Decision No. 16,608).

Accordingly, based on the record before me, I cannot conclude that respondent’s determination that petitioner’s children are not homeless is arbitrary, or capricious or unreasonable.

Although the appeals must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s’ behalf at any time, particularly if their living situation does in fact change, and to submit any documentary evidence for respondent’s consideration.




[1] The record indicates that petitioner’s son, A.S., was registered as a student in the district on or around February 23, 2010, when the family was still living in the district and that her daughter, A.S., was registered as a student on or around May 1, 2013.