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Decision No. 17,128

Appeal of DANISH MIRZA, on behalf of MIRZA AYAAN BAIG and ANAM BAIG, from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 17,128

(July 19, 2017)

Wendy Pelle-Beer & Associates, PLLC, attorneys for petitioner, Wendy Pelle-Beer, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondent, Warren E. Berbit, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Clarkstown Central School District (“respondent”) that his children (“the students”) are not residents of the district and are, therefore, not entitled to continue to attend its schools.  The appeal must be sustained.

The students have attended school in the district since 2011.  In or about March 2012, petitioner’s brother moved in with petitioner and his family in the district.  Petitioner and his brother claim that this move was on a temporary basis.  In April 2016, the district received an anonymous tip alleging that the students were being driven to and from school from an out-of-district residence.  The school secretary confirmed that, up to that point, the students had been driven to school every day of the 2015-2016 school year.  The district conducted an investigation, including surveillance of the out-of-district residence, over six dates at the end of the 2015-2016 school year and beginning of the 2016-2017 school year.  Based on the surveillance, the district determined that petitioner and the students lived at the out-of-district address. 

By letter dated October 27, 2016, the district’s director of business services (“director”) informed petitioner that, based on the surveillance report and other research conducted by the district, it was her determination that the students were not residents of the district and would be excluded from school as of November 30, 2016.  The letter requested that petitioner respond in writing no later than November 10, 2016 and supply additional proof of residency.

Petitioner’s attorney submitted a letter to the director dated November 3, 2016, stating that petitioner lived at the in-district address and that if the district had any concerns, the district’s attorney should contact petitioner’s attorney.  The district’s attorney called petitioner’s attorney to discuss the matter on November 10, 2016.  During that call, petitioner’s attorney reportedly made a “vague reference” to an illness in the family and sought more time to produce further proof of petitioner’s residency, which he produced to the district on November 14, 2016.  The additional documents included utility bills, a credit card statement, dental bills for the students, and a mortgage bill, all listing the in-district residence.  There was no documentation provided at that time to directly refute the surveillance evidence or provide proof of a family illness. 

By letter dated November 18, 2016, the director informed petitioner that she had considered the additional documentation submitted by petitioner’s attorney and that the documents did not refute the evidence that the students did not reside within the district.  The district therefore excluded the students as of November 30, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on December 9, 2016.

Petitioner asserts that he and the students reside at the in-district address.  Petitioner maintains that they moved to the in-district address in 2011 and that the students intend to reside there until they complete their education.  Petitioner claims that he and his wife own the in-district address and that it is not rented to anyone else.  Petitioner states that his brother moved in with them in March 2012 “on a temporary basis.”  Petitioner confirms that he also owns the out-of-district residence and alleges it was initially purchased in 2000, with his mother, as a primary home for petitioner’s parents and siblings.  Petitioner alleges that he and his family are “often” at the out-of-district residence because petitioner’s wife has been providing daily care to his mother, who is ill.  Petitioner claims that his wife picks the students up from school and they drive to the out-of-district residence to, among other things, care for petitioner’s mother.  Petitioner also claims that he drives to the out-of-district residence when he is done with work to help care for his parents.  Petitioner claims he is at the in-district home “at odd times and on weekends,” but that the students, his wife and himself “reside and maintain a physical presence” at the in-district address.  Together with his petition, petitioner submits additional evidence of his residency at the in-district address, including affidavits from both his mother and his brother stating that petitioner and his family continue to reside at the in-district address.  In her affidavit, petitioner’s mother attests that she was diagnosed with cancer in April 2016, that petitioner’s wife began caring for her while she received treatment, and as a result, petitioner’s children were often in her home.

Respondent asserts that petitioner and the students are not residents of the district, and that petitioner has not provided evidence that refutes the district’s surveillance evidence.  Respondent contends that petitioner’s claims on appeal regarding a sick family member are not believable, and that this explanation was not presented to the district during its lengthy residency investigation.  Respondent also points to a newspaper article provided as part of the record on appeal, which identified petitioner’s residence as the out-of-district address.  Respondent argues that its decision to exclude the students based on the evidence presented to the district was not arbitrary and capricious and therefore, must be upheld.  Respondent also argues that petitioner’s attorney made procedural errors in her handling of the appeal, which prejudiced the district, including filing additional letters and papers that should not be considered by the Commissioner.       

Initially, I must address a procedural matter.  As raised by respondent in its answer, petitioner filed two additional letters with my Office of Counsel, after respondent had served its opposition to the stay and before its answer.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  In this case, petitioner submitted various additional letters and filings, and respondent objects to all of them.  I will not consider any additional evidence or new claims raised in these letters.  Specifically, petitioner submitted the attorney’s affirmation after filing the petition, admitting that doing so was in error.  Respondent asserts that this procedural error was prejudicial to the district.  As noted above, the attorney’s affirmation contains new facts and allegations not raised in the petition; therefore, I have not considered it.

Petitioner also filed a reply.  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.

Turning to the merits of the case, 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).

Although it is undisputed that petitioner owns both the in-district and out-of-district residences, 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).  The district conducted surveillance at the out-of-district residence over five dates in May 2016, only two of which were on consecutive days, and one date in the September 2016 school year.  On five of the six surveillance dates, the investigator observed the students entering a vehicle with their mother or an unidentified adult female and leaving the out-of-district residence.  On four of the six surveillance dates, the investigator observed one or both of petitioner’s children being picked up after school and driven to the out-of-district residence. 

I agree with the district that the evidence presented by petitioner during the district’s residency investigation did not refute the surveillance conducted by the district.   However, on appeal, petitioner has asserted a reasonable explanation for his and his family’s presence at the out-of-district address on the dates of surveillance, claiming that the family was regularly at that address to care for his mother who had undergone surgery during that period.  On appeal, petitioner has presented evidence to support this claim, including affidavits from both his mother and brother, and an Operative Report from his mother’s treating physician regarding her illness and surgery.  While petitioner did not submit this evidence to respondent prior to its residency determination, the Commissioner may consider evidence properly submitted in an appeal, such as in a reply, even though it had not been previously submitted to the district (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,061).  In this case, petitioner, for the first time, presented his explanation of the surveillance in his petition, with the two affidavits.  Respondent, in its answer, has had an opportunity to respond to petitioner’s explanation and to submit evidence to rebut it. 

Petitioner has submitted documentary evidence and affidavits that support his contention that he and his children reside at the in-district residence.  Respondent based its determination that petitioner’s children are not district residents on its surveillance, a Lexis Nexis database search that shows that petitioner’s brother resides at the in-district residence, that the district’s October 22, 2016 letter was accepted at the out-of-district residence by petitioner’s wife and at the in-district residence by petitioner’s brother, and that the birth certificate of one of petitioner’s children contains the out-of-district address.  I find that petitioner has provided a sufficient explanation for respondent’s limited surveillance evidence.[1]  Petitioner has provided evidence that during the period of surveillance, petitioner’s mother was seriously ill; that petitioner’s wife was caring for her on a daily basis; and that as a result, he and his children were often at the out-of-district residence.  Respondent conducted no surveillance of the in-district residence, and consequently, on this record, the surveillance does not support respondent’s conclusion that the students were not physically present at the in-district residence (see Appeal of Hentschel, Sr., 56 Ed Dept Rep, Decision No. 16,969).  Petitioner admits that his brother is living with him and his family at the in-district residence, which explains respondent’s evidence of the brother’s presence.  While respondent argues that it “strains credibility” that petitioner’s parents live alone at the out-of-district residence, which is a large 4-bedroom house, while petitioner and his family live with his brother at the much smaller in-district residence, respondent has not refuted petitioner’s assertion that such is the case.  It appears from the record that the in-district residence is a 2-bedroom house with a finished basement, and petitioner asserts that his brother lives at the lower level.  Finally, evidence that a birth certificate issued in 2008 bore the out-of-district address is not probative of petitioner’s legal residence in 2016.

Accordingly, I find that on this record, petitioner has met his burden of proving that his children are district residents and respondent’s residency determination was arbitrary and capricious and must be set aside.

Finally, I note that nothing in this decision should be construed to limit respondent’s authority to investigate further to determine if petitioner and his children actually reside in the out-of-district residence.  In this appeal, petitioner asserts that had the surveillance occurred after September 2016, it would have indicated that he and his children reside at the in-district residence.  If respondent remains concerned that petitioner and his children are not district residents, it may collect further evidence through, for example, surveillance, a home visit, or other means such as affidavits (see e.g., Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).  In the interim, respondent must admit the students to its schools.


IT IS ORDERED that respondent shall admit the students to the schools of the district without the payment of tuition.



[1] Respondent also argues that a newspaper article featuring the students gave the out-of-district residence as petitioner’s address, although this is not cited in respondent’s residency determination letters as a basis for its decision.  In any event, it is well-settled that newspaper articles do not constitute evidence of the truth of the statements therein (Appeal of Hardy, 56 Ed Dept Rep, Decision No. 16,977; Appeal of McFeeley, 53 id., Decision No. 16,598).