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Decision No. 17,013

Appeal of LISA KOWALEWSKI, on behalf of her children, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 17,013

(December 9, 2016)

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

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that her children are not district residents.  The appeal must be dismissed.

In or about August 2015, petitioner registered her four children in respondent’s district, representing that she and the children resided at a location within respondent’s district (the “in-district address”).  The district subsequently admitted the students to its schools.

In or about September 2015, the district registrar received telephone calls from the assistant principal of the student’s elementary school indicating that she was unable to reach petitioner by phone and that the students were often late to school or absent.  The assistant principal further reported that correspondence sent to the in-district address had been returned unclaimed, and that a classmate of one of petitioner’s children reported to a teacher that the student “no longer lived” at the in-district address.  The record further reflects that when the school nurse called the telephone number listed for the in-district address, the students’ grandmother answered and stated that petitioner did not live at the in-district address.  Based on this information, the district initiated an investigation into the students’ residency.

An investigator surveilled two in-district residences and an out-of-district residence on nine dates between October 2015 and December 2015.  In a letter dated December 7, 2015, the district’s deputy superintendent informed petitioner that the students may not be residents of respondent’s district.  The letter invited petitioner to submit evidence of residency, and the record reflects that petitioner submitted documents for the district’s consideration.  In a letter dated December 16, 2015, the deputy superintendent stated that after reviewing the surveillance evidence as well as petitioner’s documents, he determined that the students did not reside within respondent’s district.  The deputy superintendent informed petitioner that the district would permit the students to remain enrolled in its schools through December 23, 2015, after which the students would be excluded from respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 5, 2016.

Petitioner contends that she and the students reside at the in-district address.  Petitioner further asserts that the students have resided at the in-district residence for 13 months and intend to remain there “for 1 year.”  Petitioner requests a determination that the students are residents of respondent’s district and, therefore, entitled to attend its schools tuition-free.

Respondent argues that it appropriately determined that the students did not reside within its district and that petitioner has not met her burden to demonstrate a clear legal right to the relief requested.  Respondent further contends that the appeal must be dismissed for untimely service, a defective affidavit of verification, failure to submit an affidavit of service, and failure to state a claim upon which relief may be granted.  Respondent additionally argues that its determination was reasonable, and that to hold otherwise would improperly require it to use public funds to finance the education of non-district residents.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The record reflects that the December 16, 2015 letter informing petitioner of the district’s residency determination was hand-delivered to petitioner on December 17, 2015.  Therefore, petitioner was required to serve a petition on or before January 19, 2016.[1]  According to the affidavit of service in the record, petitioner served her petition on January 22, 2016 and re-served it with a notice of appeal on January 29, 2016 pursuant to instructions from my Office of Counsel (see 8 NYCRR §275.11).[2]  Petitioner does not set forth good cause for this delay but, inexplicably, alleges that the students “made a request for admission” to respondent’s schools on January 11, 2016, which was denied on January 15, 2016.  The record is devoid of any evidence corroborating these allegations, and respondent denies them in its answer.  Accordingly, the appeal must be dismissed as untimely.

Although delays in residency cases have been excused where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to re-apply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of Manfredo, 56 Ed Dept Rep, Decision No. 16,943; Appeal of Jean-Louis, 49 id. 400, Decision No. 16,062; Appeal of Faucett, 38 id. 117, Decision No. 13,996), those factors are not present here.  Moreover, I note that petitioner failed to submit a reply and, therefore, did not respond to respondent’s affirmative defense that the appeal is untimely.  Accordingly, I find the appeal is untimely, warranting dismissal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  As noted, petitioner has not submitted a reply and has neither explained nor rebutted respondent’s surveillance evidence. On this record, petitioner has failed to meet her burden of proving that she and her children reside at the in-district address.

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




[1] While respondent is correct that January 16, 2016 represented 30 days from the making of the decision complained of, January 16, 2016 was a Saturday, and Monday January 18, 2016 was a legal holiday.  Therefore, service would have been timely had it been effectuated on January 19, 2016 (8 NYCRR §275.8[a]).


[2] My office of Counsel advised petitioner that the petition would be deemed served on January 22, 2016 if the notice and the petition were served within a specified time period.