Decision No. 17,667
Appeal of JESSICA RUGGIERO, on behalf of her children PAIGE SANCHEZ and TAYLOR RUGGIERO-HAZEL, from action of the Board of Education of the Hastings-on-Hudson Union Free School District regarding residency.
Decision No. 17,667
(June 28, 2019)
Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel
ELIA., Commissioner.--Petitioner appeals the December 21, 2018 decision of the Board of Education of the Hastings-on-Hudson Union Free School District (“respondent”) that her children, Paige and Taylor (collectively, “the students”) are not residents of the district. The appeal must be dismissed.
The record indicates that petitioner enrolled the students in respondent’s schools on August 1, 2017. The students have continuously attended the district’s schools since that time. During the 2018-2019 school year, the district became aware that the students were being driven to and from school every day, that Paige was often arriving late to school, and that petitioner had requested that no correspondence be mailed to her in-district address, insisting upon only digital communication. The district initiated an investigation into the residency of the students.
The district began its investigation by reviewing the documents that petitioner had provided on August 1, 2017 to document residency. The documents included a Westchester County Recording and Endorsement page, a statement from a telecommunications provider, a water bill, and a utility bill, all bearing the in-district address. The district then hired an investigator who discovered that petitioner owns three properties in the region: one in Hastings-on-Hudson (the “in-district address”) a second in Yonkers where petitioner was believed to reside (the “out-of-district address”), and a third Yonkers property which, according to the record, appears to be another rental property (the “secondary Yonkers property”). Municipal and utility searches performed by the investigator revealed that the in-district address is a two-family dwelling with two separate tenants occupying the property. A Department of Motor Vehicles search revealed that petitioner’s vehicle is registered to the out-of-district address.
The investigator surveilled all three properties on the morning of November 8, 2018. When no activity associated with petitioner or the students was discovered at the secondary Yonkers property, surveillance at that address was discontinued. The investigator continued surveillance on the other two properties and found that while people and vehicles were present at the in-district address, none were associated with petitioner or the students. At the out-of-district address, the investigator observed the vehicle registered to petitioner and observed petitioner leave this property and drive the students to their respective schools in respondent’s district.
The investigator surveilled the out-of-district address on 23 weekdays from November 8 through December 14, 2018 and surveilled the in-district address on 11 days during the same time period. On each morning that the out-of-district address was surveilled, the investigator saw either petitioner or petitioner’s partner leave the house with one or both of the students and proceed toward respondent’s school(s). On each afternoon that the out-of-district address was surveilled, the investigator saw the students return to the property. In contrast, neither petitioner, petitioner’s partner, nor the students were ever observed at the in-district address. Additionally, while petitioner alleges on appeal that construction was occurring on the in-district address at this time, no evidence of any construction was observed.
After receiving the investigator’s initial report dated November 24, 2018, the district’s residency officer notified petitioner that the students’ residency was in question by letter dated November 29, 2018. The letter further requested that petitioner provide any proof of residency she may possess by December 13, 2018. In reply, petitioner submitted a letter dated December 13, 2018, together with: (1) a copy of the deed to the in-district address, (2) a 2018 county and town tax bill, (3) a 2017-2018 school tax bill, (4) a water bill, and (5) a Town of Greenburgh assessment letter dated June 1, 2018, all related to the in-district address. Respondent received this correspondence on December 16, 2018. The next day, December 17, 2018, Paige submitted a doctor’s note which reflected her home address as the out-of-district address. The residency officer checked the student’s health file and found three other pieces of correspondence from the student’s doctor, all listing her address as the out-of-district address.
The residency officer received the investigator’s final report on December 19, 2018 and thereafter made a final determination that the students were not district residents, notifying petitioner via letter dated December 21, 2018. The letter stated that the students would be disenrolled as of January 2, 2019. This appeal ensued. Petitioner’s request for interim relief was granted on January 9, 2019.
Petitioner contends that she and the students reside at the in-district address, which is under construction and uninhabitable. Petitioner also contends that she and the students have “temporarily stayed” at the out-of-district address due to removal of walls and flooring which have made staying in the in-district address “not safe or hospitable.”
Respondent contends that petitioner has failed to meet her burden of establishing the facts upon which she seeks relief and has failed to demonstrate a clear legal right to the relief requested. Respondent asserts that its residency determination is supported by the record and is neither arbitrary nor capricious. Respondent maintains that the students physically reside outside the district and asserts that mere ownership of the in-district address does not confer residency upon petitioner and the students.
I must first address a procedural matter. Respondent has requested leave to submit an additional affirmation and affidavit addressing a typographical error in respondent’s answer. Specifically, an erroneous house number for the out-of-district address is listed throughout respondent’s answer, and respondent seeks to clarify the property in which it alleges petitioner actually resides. 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).
Here, respondent has explained that the additional affirmation and affidavit are necessary to correct a typographical error in the answer. The house number set forth in the answer is clearly inconsistent with the house number presented in other documents in the record, including the affirmation submitted by respondent in opposition to the request for a stay, the affidavits of the investigator relating to the surveillance and the investigative summary reports summarizing the surveillance evidence. Respondent properly requested permission to submit the affirmation and affidavit and served them upon petitioner in accordance with 8 NYCRR §276.5. Respondent is not seeking to make a new claim or raise new issues, but rather to correct an obvious error in its answer. Petitioner is not prejudiced by this submission and the correction of that error, since all other documents in the record, including the surveillance evidence and the petition itself, contain the correct house number. Based on the above, I will accept submission of the affirmation and affidavit and they have been considered.
Education Law §3202(1) provides, in pertinent part:
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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
On this record, I find that petitioner has not met her burden of proving that she and the students reside at the in-district address. In support of her claim that the students reside within the district, petitioner submits tax and utility bills, pool passes, a copy of her driver’s license, an assessment letter, her deed to the in-district address, and a contractor’s bid for work to be done at the in-district address. While petitioner’s documentary evidence establishes that she pays taxes and utilities as owner of the in-district address, it does not conclusively establish that she and the students reside there. In this respect, the record contains extensive surveillance evidence indicating that petitioner and the students are physically present at the out-of-district address, and not the in-district address. As noted above, the surveillance reports reveal that, out of 23 days of initial surveillance, petitioner or one or both of the students were observed exiting the out-of-district address in the morning. Moreover, on each of the 23 days in which the out-of-district address was surveilled in the afternoon, the students were observed returning to the out-of-district address. In addition, on the dates that surveillance was performed at both properties, petitioner’s vehicle was observed at the out-of-district address and not at the in-district address. Furthermore, on the four days of additional surveillance conducted in January 2019, petitioner and the students were observed leaving for school from the out-of-district address. Investigators reported never observing petitioner or the students at the in-district address during the November 2018, December 2018 or January 2019 surveillance.
Petitioner asserts that she and the students are staying at the out-of-district address temporarily due to construction being performed at the in-district address. A residence is not lost until it is abandoned, and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).
Respondent’s surveillance evidence from November and December 2018 explicitly indicates that no evidence of construction was observed on any of the 11 days that the in-district address was initially surveilled. Respondent’s additional surveillance indicates that no evidence of construction material or debris was observed on the 4 days of surveillance of the in-district address in January 2019.
In response, petitioner has submitted an affidavit from her contractor attesting that he began work on renovation and repair of the in-district address on October 29, 2018, but there have been multiple delays and he did not expect to complete the project until the end of February 2019. Without specifically addressing the dates of surveillance, he attributes the delays to a cracked main drain that needed to be replaced, the holiday season from Thanksgiving through New Year’s Day during which no work was performed for approximately three weeks, one unspecified week in which he had family emergencies and could not work on the project, and “several weeks” in which work was delayed because petitioner was unable to pay for supplies and labor costs.
While this affidavit theoretically explains why no evidence of construction was observed on at least some of the dates of surveillance, it is not correlated to the actual dates of surveillance and, thus, does not explain the undisputed evidence that no evidence of construction was observed on any of the 14 dates. I take administrative notice that Thanksgiving in 2018 was on November 22, 2018 and that there were more than 5 weeks between Thanksgiving and New Year’s Day and not 3 weeks. No evidence of construction was observed on at least 6 of the 7 days of surveillance of the in-district address prior to Thanksgiving, so if work ceased during the holiday season, that would only explain the failure to observe evidence of construction on the 4 days of surveillance from December 4 through December 7, 2018. That leaves 10 days of observations that are not fully explained, and I decline to speculate about when work might have ceased based on family emergencies or delays in payment.
Even if I accepted petitioner’s argument that the repeated failure to observe evidence of construction is explained by the alleged delays in the project, I would find that petitioner has failed to meet her burden of proving that she and the students resided at the in-district address prior to their and the students’ alleged temporary absence from the district. Specifically, petitioner has not provided persuasive evidence that she and the students were physically present at the in-district address prior to initiation of the renovation project in October 2018. For the most part, the documentary evidence submitted by petitioner merely establishes that petitioner is the owner of the in-district address and thus pays taxes, water and utility bills on the property. Petitioner submits undated village pool passes and her driver’s license as evidence that she and the students reside at the in-district residence. However, this evidence is not sufficient to establish that petitioner and the students resided at the in-district address prior to the construction. Petitioner has not explained why her vehicle is registered at the out-of-district address, nor has she satisfactorily explained why the out-of-district address is on file as her daughter’s address in her medical records if, in fact, she and the students are only temporarily residing at such address. Thus, petitioner has not proven that she initially established residency in respondent’s district prior to the alleged temporary absence (see e.g. Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of Zhang and Xue, 54 id., Decision No. 16,733; Appeal of Lin, 48 id. 166, Decision No. 15,827).
Moreover, petitioner attempts to explain respondent’s evidence suggesting that the in-district address is leased to others by asserting that the in-district address is comprised of 3 floors and 2 apartments, that one apartment is comprised of the first 2 floors, and that she and the students occupy the “1st floor.” She further asserts that the second floor is “shared and occupied” by tenants, “while the ... 3rd floor is occupied by other renters and residents.” On its face, petitioner’s explanation is internally inconsistent, since she asserts, on the one hand, that there are only two apartments in the building, one of which consists of the first two floors, yet simultaneously argues that she and the students occupy only the first floor of one of the apartments. Nor does petitioner explain why the premises are uninhabitable for herself and the students but habitable for her tenants, who were observed occupying the premises by the investigator. In her reply, petitioner admits that the renters named in respondent’s answer are present in the in-district residence and asserts vaguely that their living space is not, and has not been, affected by the repairs. However, respondent asserts in its answer that one of the two apartments is leased to two individuals who have motor vehicles registered to the in-district address and that a third individual has leased the other apartment since August 31, 2017. Thus, petitioner has admitted that both apartments are leased to other tenants, which contradicts her allegations in the petition and the reply. On this record, I find that it was not unreasonable or arbitrary for respondent to rely upon its extensive surveillance evidence and reject petitioner’s allegations that she and the students were not temporarily absent from the in-district address due to the construction project.
Based on the record before me, I cannot conclude that respondent’s determination that petitioner’s children are not district residents is arbitrary, capricious, or unreasonable. Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Presumably, this document was the recording page which accompanies petitioner’s deed to the in-district address.
 There is a discrepancy between the answer, which indicates that surveillance was conducted on 23 days, and the investigative summary report dated December 17, 2018, which indicates that surveillance was conducted on 22 days. In its answer, respondent asserts that such investigative summary report inadvertently omitted surveillance conducted on November 15, 2018. However, the results of that additional day of surveillance are contained in the preliminary investigative summary report dated November 24, 2018, which is attached as an exhibit to the affidavit of the district treasurer submitted in opposition to petitioner’s request for a stay. On November 15, 2018, as on the other days of surveillance, petitioner and the students were observed leaving for school from the out-of-district residence and were not observed at the in-district residence. I have considered the results of the November 15, 2018 surveillance in reaching my determination since they are part of the record on appeal.
 Notably, the deed lists petitioner’s address of the out-of-district address on the date of conveyance: June 6, 2017.
 Attached to the answer are an affidavit of the investigator and a second investigative summary report dated January 20, 2019, both of which indicate that additional surveillance of the in-district and out-of-district addresses was conducted on the mornings of January 11, 16, 17 and 18, 2019. On all four dates, petitioner and the students were observed leaving the out-of-district address and arriving at school. On all four dates, petitioner and the students were not observed leaving the in-district address and no construction materials or debris were observed at the site.
 I have also accepted for filing the original of the affidavit of Adrienne Ferretti, sworn to on January 28, 2019, a copy of which was annexed to the answer.
 The results of the November 15, 2018 surveillance do not address whether evidence of construction was observed on that date.