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Decision No. 17,354

Appeal of a Student with a Disability and his brother, by their mother, from action of the Board of Education of the Putnam Valley Central School District regarding residency.

Decision No. 17,354

(March 20, 2018)

Gina DeCrescenzo, P.C., attorneys for petitioner, Gina M. DeCrescenzo, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Putnam Valley Central School District ("respondent board") that her children are not residents of the district.  The appeal must be sustained.

The record indicates that petitioner’s two children have been enrolled in the respondent’s schools since at least the 2016-2017 school year when petitioner registered her younger son for kindergarten.   At the time of enrollment, petitioner indicated that she and the students lived at an address in Putnam Valley, New York within the district (“in-district address”).  The record indicates that petitioner’s younger son received at-home services from various providers first through the Committee on Preschool Special Education and, subsequently, the Committee on Special Education when he began kindergarten in the 2016-2017 school year.  During the 2016-2017 school year, shortly after petitioner enrolled her younger son in the district, respondent questioned petitioner’s residency.  After discussions with the individuals providing the student’s services, the district’s assistant superintendent for pupil personnel and human resources (“assistant superintendent”) became aware of information that indicated petitioner may not live at the in-district address.  By letter dated October 18, 2016, the assistant superintendent notified petitioner that her residency was in question and directed her to submit additional information in support of her residency by November 2, 2016.

By letter dated October 21, 2016, petitioner’s attorney submitted additional documentation regarding petitioner’s residency, including petitioner’s driver’s license, vehicle registration, car insurance statement and payment receipt, bank statements, medical bills, and 2015 income tax return, all bearing the in-district address.  In addition, petitioner’s attorney submitted information regarding petitioner’s temporary residence at an address in Putnam Valley outside the district (“out-of-district address”) due to renovations at the in-district address, including a lease agreement and utility bills for the out-of-district address.  All of the documentation relating to the out-of-district address bears the names of petitioner’s parents, who lease the property.  With the above documentation, petitioner’s attorney also submitted a letter from petitioner’s son’s doctor recommending that he stay at another location while renovations were being done on their home at the in-district address because of pulmonary problems.  Based on a review of all the evidence submitted, respondent determined that the students were not district residents.  By letter dated October 26, 2016, the assistant superintendent notified petitioner of the determination and that the students would be excluded from respondent’s schools effective November 14, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on December 2, 2016.

Petitioner contends that she and the students reside at the in-district address and, therefore, her children are entitled to attend respondent’s schools tuition-free.  Petitioner argues that, during intermittent periods of time, when renovations at the in-district address rendered it unsuitable for her son, she and both children stayed temporarily at the out-of-district address.

Respondent contends that petitioner and the students reside outside of the district, and that petitioner has failed to meet her burden to establish that they do in fact reside within the district.

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).

Petitioner alleges that on or about January 1, 2016, renovations began at the in-district address, and that intermittently thereafter she and her children slept at the out-of-district address, but only when the construction rendered the in-district address an unsuitable environment for her son.  In support of her residence within the district, petitioner provided respondent with numerous documents, including a tax return, petitioner’s driver’s license, vehicle registration, automobile insurance identification cards, her son’s individualized education program, and various medical documents, all bearing the in-district address.  In addition, petitioner provided a letter from her son’s medical provider recommending that the student not stay at the in-district address for the duration of renovations.  Petitioner further submitted with the petition medical bills and several bank statements, all of which bear the in-district address.

While respondent provides affidavits from three special education service providers describing information they provided in response to the assistant superintendent’s request for any information they had that might raise questions or suspicions that the students might not live at the in-district address, respondent provides no other direct evidence to that effect.  Respondent did not conduct any surveillance on either the in-district or out-of-district address, and each of the student’s service providers’ affidavits indicate that they have provided services to the student only a limited number of times at the out-of-district address, for which petitioner has provided an explanation.  Moreover, although petitioner was occasionally seen dropping off the student or arriving late for appointments at the in-district address, such instances are explained by petitioner.  Respondent’s limited evidence is not sufficient to contradict petitioner’s explanation for her intermittent presence at the out-of-district address.

On the totality of this record, I find that, in light of petitioner’s explanations and substantial documentary evidence including bank statements, tax documents and medical documents, respondent’s limited evidence is not dispositive.  After careful review of the totality of the evidence, I find that petitioner provided sufficient documentation to establish residency within the district and thus has carried her burden of proof in this appeal.

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


IT IS ORDERED that respondent permit petitioner’s children to attend school in the Putnam Valley Central School District without payment of tuition.