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Decision No. 16,822

Appeal of ROSARIO MAYS, on behalf of her daughters JADA and JAZZMINA SUTTON, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 16,822

(August 31, 2015)

Law Office of Lisa M. Fantino, attorney for petitioner, Lisa M. Fantino, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Stephanie L. Burns, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the White Plains City School District (“respondent”) that her daughters, Jada and Jazzmina (the “students”), are not district residents.  The appeal must be dismissed.

Petitioner registered her daughters in respondent’s school district in September 2014.  At the time, petitioner indicated that she and her daughters resided at an address in White Plains, within the school district (the “in-district address”).  At the time, petitioner provided a copy of a lease agreement and a telephone bill as proof of their residency.  The lease agreement identifies petitioner as a co-tenant with Anthony Rocco at the in-district address.  On the registration forms completed by petitioner, Mr. Rocco is listed as an emergency contact for both students.  

On or about January 7, 2015, respondent initiated an investigation into the students’ residency in the district, apparently after an incident in which the students were returned to their elementary school by their school bus because no one was present at the students’ bus stop.  In addition, respondent’s elementary school staff observed that the students were not using district transportation in the mornings but, instead, were being dropped off at school each day. 

Based on this information, the district engaged an outside investigation firm which commenced an investigation of petitioner’s residency on March 14, 2015.  According to the investigation report, on March 15, 2015, an investigator visited the in-district address and spoke with Mr. Rocco who stated that petitioner and her daughters were not there and advised the investigator that, although petitioner receives mail at the in-district address, she resides in New Rochelle, New York.

The investigation continued on March 26, 2015, when investigators observed the students board a school bus after school and disembark at a day care center. At approximately 5:55 p.m., petitioner was observed picking up the students from the day care facility and traveling to the in-district address.  Approximately 10 minutes later, petitioner and the students were observed leaving the in-district address, making several stops, then travelling to petitioner’s mother’s home in the Bronx (“out-of-district address”) where they remained until surveillance was concluded at approximately 8:30 p.m.  Surveillance was conducted early in the morning at the out-of-district address on April 9, 10, 13 and 14, 2015.  During this period, petitioner was observed arriving at that address each morning; petitioner entered the residence and remained there while an adult male exited the residence with the students and drove them to school each morning.  

By letter dated April 20, 2015, respondent’s assistant superintendent advised petitioner that the students’ residency was in question.  That letter was mailed to the out-of-district address. The letter further informed petitioner of the opportunity to submit any information regarding the students’ residency in the district “no later than May 1, 2015.”  

On or about April 24, 2015, petitioner submitted a request to respondent’s Family Information Center to have the students transferred to a different elementary school within respondent’s district. Subsequently, petitioner was notified of the pending residency investigation and provided additional documentation, which included a second copy of the condominium lease with Mr. Rocco, as well as a recent cell phone statement listing the in-district address. 

By letter dated May 7, 2015, respondent’s assistant superintendent notified petitioner that a final determination had been made that her children were not district residents and would be excluded from respondent’s schools, effective May 22, 2015.  The letter was mailed to the out-of-district address and a copy was sent to the attention of Mr. Rocco at the in-district address. This appeal ensued.  Petitioner’s request for interim relief was granted on June 5, 2015.

Petitioner claims that both she and her children reside at an address in respondent’s district.  Petitioner contends that, although there is no formal agreement, she is separated from the student’s father and is the custodial parent.  Petitioner asserts that she often works at night and has her mother care for her children at her mother’s home at the out-of-district address in the Bronx.  Petitioner maintains that she and her children do not reside at the Bronx address but instead, reside at the in-district address.

Respondent contends that petitioner and her children do not reside in its district but, instead, reside at the out-of-district Bronx address.  Respondent asserts that its residency determination was not arbitrary and capricious, but was in all respects proper. 

Education Law §3202(1) provides, in pertinent part, as follows:

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).

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).

To support her claim of residency in the instant appeal, petitioner produced copies of several documents, including: the signed condominium lease with Mr. Rocco, dated August 1, 2014 through July 31, 2016; an April 2015 cell phone statement; a copy of her New York State commercial driver’s learner’s permit, issued on January 8, 2015; a Westchester County “For Hire Vehicle Driver” permit; and a 2014 IRS 1099-K form - all listing the in-district address.  She also submits affidavits from her mother and the students’ father, stating that the students are cared for by petitioner’s mother and sleep at the out-of-district Bronx address on the nights that petitioner and the students’ father work.  The affidavit by petitioner’s mother states that petitioner does not live with her at the Bronx address.

Respondent submits its surveillance information, as well as an affidavit and a second, notarized statement by Mr. Rocco - listed as co-tenant with petitioner on the condominium lease at the in-district address.  In his affidavit, Mr. Rocco avers that petitioner asked him if she could use his address to “send her kids to W.P. schools for the upcoming school year.”  In the notarized statement, he clarifies that petitioner and her children never moved in with him in his apartment.

Initially, I note that, in a reply affirmation by petitioner’s attorney, Mr. Rocco’s affidavit is characterized as “an eleventh hour affidavit” that conflicts with petitioner’s documentary evidence.  However, petitioner does not object to the submission of Mr. Rocco’s affidavit and statement; indeed, petitioner sets forth no legal basis for their exclusion, and I have considered them as part of the record herein. 

After reviewing the entirety of the record before me, I conclude that petitioner has not met her burden of proof and has failed to establish that her children reside in respondent’s school district. Although petitioner submits a condominium lease listing her a co-tenant at the in-district address, along with a 1099 tax form, commercial driver learner’s permit and cell phone bills listing the in-district address, such documentary evidence does not establish her physical presence - and that of her children - in respondent’s district.  Moreover, her claim is belied by Mr. Rocco’s affidavit and statement, which directly refutes petitioner’s claim of residency at the in-district address, as well as by respondent’s surveillance.

Although the children’s presence at the out-of-district address is not necessarily inconsistent with petitioner’s assertion that they stay at her mother’s on the nights that petitioner works, the frequency of their presence there exceeds that stated by petitioner.  Moreover, petitioner’s assertion that she picks her children up to take them to school on the mornings after the children have stayed at her mother’s house is rebutted by the surveillance, revealing that, on four mornings, petitioner arrived at the out-of-district address early in the morning and remained there while an adult male left with the children and took them to school.  

I note that petitioner provides no explanation for the surveillance evidence submitted by respondent.  I also note that the affidavit by the children’s father, submitted by petitioner, contains no information regarding petitioner’s actual residence and provides no support for her claim that she, in fact, resides at the in-district address.  I have also considered the affidavit by petitioner’s mother stating that petitioner does not live with her, but it also provides no information on where petitioner actually resides.  However, based on the totality of the evidence in the record, I find that petitioner has failed to establish her actual physical presence in respondent’s district (see Appeal of Powell, 47 Ed Dept Rep 98, Decision No. 15,639).

Based on the record before me, petitioner has failed to meet her burden of proof.  Accordingly, I cannot conclude that respondent’s determination that petitioner’s children are not district residents and are not entitled to attend the district’s schools tuition-free is arbitrary, capricious or unreasonable.

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

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