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Decision No. 17,705

Appeal of RODLY BORGELLA, on behalf of his daughter ANNE CHRISTIE, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 17,705

(July 22, 2019)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the East Islip Union Free School District (“respondent”) that his daughter, Anne Christie (“the student”), is not a district resident.  The appeal must be dismissed.

The record indicates that the student was enrolled in respondent’s middle school on or about January 7, 2019.  At some point in March 2019, respondent’s assistant superintendent of instruction/personnel (“assistant superintendent”) asked a security guard employed by respondent (“security guard”) to conduct surveillance to confirm the student’s residency within respondent’s district.  In an affidavit submitted in connection with this appeal, the security guard avers that his duties sometimes include helping the assistant superintendent “in conducting residency investigations of those students enrolled within [the district] yet suspected of residing outside the geographical boundaries of the District.”  The security guard further asserts in his affidavit that he “regularly and only observed petitioner’s child to either be departing from, and or returning to [a residence located outside of respondent’s district] at nine (9) separate times in March 2019.”

By letter dated March 26, 2019, the assistant superintendent informed petitioner that respondent had “become aware” that the student did not reside within respondent’s district and that, accordingly, she would be excluded from its schools after April 5, 2019.  The assistant superintendent’s letter offered petitioner an opportunity to attend a meeting at which he could “provide the District with documentary proof” that the student resided within respondent’s district.

A residency hearing was held on April 2, 2019; the hearing was attended by the assistant superintendent, the district registrar and petitioner.  The record indicates that, at the hearing, petitioner stated that he and his daughter reside in respondent’s district, but often go to their family’s home at the address outside of respondent’s district (i.e., the home that the security guard had observed the student leaving from and returning to).

By letter dated April 2, 2019, the assistant superintendent informed petitioner that respondent’s determination regarding the student’s residency remained unchanged and that, accordingly, she would be excluded from respondent’s schools after April 5, 2019.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 15, 2019.

Petitioner asserts that he and the student reside within the district.  Specifically, he claims in the petition that he and his daughter live with “members of their church” within respondent’s district.  In support of his claim, petitioner presents a third-party residency statement, in which an individual asserts that petitioner and his daughter live with him at his residence within the district; a document from an individual purporting to represent petitioner’s bank alleging that petitioner now resides within respondent’s district; and several documents related to the student’s academic performance.  Petitioner requests a determination that the student resides within respondent’s district and is therefore entitled to attend its schools without the payment of tuition.

Respondent asserts that the appeal must be dismissed because the petition was improperly verified.  Respondent further contends that petitioner and his daughter reside outside respondent’s district, and that petitioner has failed to rebut the surveillance evidence which showed the student “regularly and only” departing from and returning to a residence outside the district.

The appeal must be dismissed for lack of proper verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Specifically, a petition is required to be verified “by the oath of at least one of the petitioners...” (see 8 NYCRR §275.5[a]).  Here, petitioner did not verify the petition.  Instead, the verification is signed by an individual named James Laroche, whose identity is not clear from the record.[1]  Further, in the affidavit of verification signed by Mr. Laroche, he states that he “is not a party in this proceeding....”  Accordingly, petitioner has failed to verify the petition and the appeal must be dismissed.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s behalf at any time and to submit any documentary evidence for respondent’s consideration.




[1] Mr. Laroche also signed the affidavit of personal service submitted in connection with this appeal.