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Decision No. 17,184

Appeal of J.R., on behalf of her children, from action of the Board of Education of the Rocky Point Union Free School District regarding residency.

Decision No. 17,184

(September 12, 2017)

Kevin A. Seaman, Attorney at Law, attorneys for respondent, Kevin A. Seaman, Esq., of counsel

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

In June 2014, petitioner and the students moved in to petitioner’s parents’ home, which is located within respondent’s geographical boundaries (the “in-district address”).   

In January 2017, the district received two anonymous reports that petitioner and the students were currently residing at a location outside of the district’s geographical boundaries (the “out-of-district address”).

The district proceeded to conduct surveillance on three days: March 13, March 20, and March 22, 2017.  On the morning of March 13, 2017, the investigator witnessed petitioner and the students leave the out-of-district address in a car and arrive at the in-district address.  At this point, surveillance was terminated.  On March 20, 2017, an investigator surveilled the in-district address and observed petitioner and the students arrive at the in-district address at 7:21 a.m.  The students were picked up by the school bus shortly thereafter.  On March 22, 2017, an investigator surveilled the out-of-district address and observed what “appeared to be” petitioner’s car parked at the out-of-district address.  The investigator then proceeded to the in-district address and observed petitioner’s boyfriend and the students arrive at the in-district address in the boyfriend’s car at 7:16 a.m. The students were observed board the bus shortly thereafter.

On March 29, 2017, the director wrote to petitioner and informed petitioner of her determination that the students did not reside within the district.  The director indicated that the students’ last day of school would be April 20, 2017.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 19, 2017.

Petitioner contends that she and the students have resided at the in-district address continuously since June 2014.  Petitioner admits that she “visits” the out-of-district address but denies that it is the students’ legal address.  Petitioner further contends that the district deprived her of an opportunity to present evidence in support of her position that she resides at the in-district residence prior to the date of its determination as required by State regulations.

Respondent contends that its determination is supported by the evidence in the record and that petitioner and the students, in fact, reside at the out-of-district address.

In a reply, petitioner contends that respondent’s answer was not served within the timeframe prescribed by 8 NYCRR §275.13(a) and, thus, should be stricken from the record.  Petitioner further contends that she was not served with a copy of an affidavit submitted by respondent in opposition to her request for a stay.

I must first address several preliminary issues.  Petitioner submitted a reply in this matter.  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.

Petitioner asserts that respondent’s answer should be stricken from the record because it was late.  However, respondent’s answer was served in a timely manner.  While petitioner is correct that the answer was served 21 days after service of the petition, the date upon which the petition was served is excluded when calculating the 20-day period for service (8 NYCRR §275.13).  Moreover, even assuming, arguendo, that the date upon which petitioner effectuated service was not excluded, the answer would have been due on a Sunday, and the Commissioner’s regulations permit service on the following Monday under such circumstances (8 NYCRR §275.8[b]).  Therefore, the answer was timely served and I have considered it in reaching my determination.

Petitioner further asserts that she did not receive a copy of an affidavit submitted by respondent with its opposition to petitioner’s stay request.  Respondent’s affidavit in opposition to petitioner’s stay request, together with supporting evidence, was transmitted to my Office of Counsel via facsimile on April 19, 2017 and contains no proof of service upon petitioner.  Therefore, on the record before me, it appears that petitioner was not served with a copy of this affidavit in violation of the Commissioner’s regulations (8 NYCRR §275.8[b]).  Consequently, I have not considered this affidavit or the evidence attached thereto in rendering my determination.

Petitioner has submitted a memorandum of law containing new exhibits.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, I have not considered the new exhibits attached to petitioner’s memorandum of law.

Turning to the merits, 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).

Upon review of the record, I conclude that petitioner has met her burden of proving that the students physically reside within respondent’s district.  Petitioner asserts that she has continuously resided at the in-district address since June 2014.  In support of her contention, petitioner submits voluminous documentation identifying her residence as the in-district address, including 2015 and 2016 State and federal tax forms; New York State driver’s license information accessed on April 4, 2017; a paystub for the period March 29, 2017 through April 4, 2017; a New York sporting license issued on March 25, 2017; a New York State vehicle registration obtained on January 12, 2017; and a prior written notice[1] dated November 6, 2015 concerning one of the students who is the subject of this appeal.  Additionally, as noted above, petitioner admits in her petition that she occasionally visits her boyfriend at the out-of-district address and clarifies in her reply that she sleeps over at her boyfriend’s house “from time to time.”

In response, respondent relies upon very limited and inconclusive surveillance which, under the circumstances, fails to rebut petitioner’s evidence.  At best, the surveillance evidence shows that petitioner drove the students from the out-of-district address to the in-district address for bus pick-up once and that petitioner or her boyfriend drove the students to the in-district address twice for bus pick-up.[2]  Respondent conducted no surveillance during the afternoons or on weekends.  I also find it relevant that the investigator characterized the surveillance report as a “preliminary report.”  Given petitioner’s admission that she occasionally sleeps at the out-of-district address, I find that petitioner has explained the students’ presence at the out-of-district address and I do not find respondent’s limited surveillance evidence to be persuasive evidence that petitioner and her children reside at the out-of-district address.

On the record before me, I find that petitioner has met her burden of proof and that respondent’s determination that the students do not reside in the district is not supported by the record and must be set aside.

I have considered the parties’ remaining contentions and find them without merit.


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



[1] This prior written notice was issued pursuant to the district’s obligations under the Individuals with Disabilities Education Act (20 USC §1400 et seq.) and Article 89 of the Education Law.


[2] I note that, on March 20, 2017, the investigator merely observed the students arriving at the in-district address; it is not clear where the students were prior to their arrival at this location.