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Decision No. 17,725

Appeal of DERRICK CLYBURN, on behalf of his daughter SYLVIA VICTORIA, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 17,725

(August 8, 2019)

Ingerman Smith L.L.P., attorney for respondent, Michael G. McAlvin, Esq., of counsel

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

     According to the record, petitioner resides at an address in respondent’s school district (“Freeport address”).  The student’s mother resides in the Hempstead Union Free School District (“Hempstead address”).  Petitioner’s daughter attended school in respondent’s district during the 2015-2016 school year.  Based on certain statements made to respondent’s registrar by the student’s mother indicating that the student lived with her in the Hempstead school district, respondent commenced an investigation of the student’s residency, including surveillance.

Surveillance was conducted from December 15, 2015 through January 13, 2016.  On five weekday mornings, the student was observed exiting the Hempstead address.  On three other weekday mornings, the student was either dropped off at the Freeport address by her mother or petitioner was observed leaving the Freeport address alone and returning with his daughter.  In February 2016, respondent’s executive director for operations (“executive director”) notified the student’s mother that he “ha[d] reason to believe that your family does not reside within the Freeport School District.”

Thereafter, petitioner and the student’s mother met with respondent’s executive director and indicated that they were separated and that the student lived with petitioner, although she spent time with her mother in Hempstead.  By letter dated April 18, 2016, the executive director notified petitioner that, based on the representations made at their meeting, the student could continue to attend school in respondent’s district.  He stated that, as long as the student was domiciled with petitioner in the district, she could continue attending the district’s schools.

Nevertheless, during the following school year, respondent continued additional surveillance at the out-of-district address on six occasions during the early morning.  Surveillance was conducted between January 17, 2017 and June 6, 2017.  On each of the six days of surveillance, the student and her mother were observed leaving the Hempstead address, entering the mother’s vehicle, and departing the out-of-district address.

By letter dated July 26, 2017, respondent’s director of grants, funded programs and student achievement (“director”) notified petitioner that, after reviewing the information previously provided in April 2016 and the additional 2017 surveillance, the district concluded that the student did not reside in the district and would be excluded from attendance on August 1, 2017.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 29, 2017.

Petitioner alleges that his daughter resides with him in respondent’s district.  Petitioner asserts that respondent’s former executive director previously resolved the issue of his daughter’s residency in April 2016.  Petitioner claims that the student lives with him during the week but visits her mother once each week and on weekends, and that her mother sometimes takes care of her on other days.  As relief, petitioner seeks a determination that his daughter is a resident of respondent’s school district and is entitled to attend school within the district without payment of tuition.

Respondent asserts that the student is not a district resident and that its determination is rational and supported by the evidence in the record.  Respondent contends that petitioner has not established that his daughter is a resident of its district.  Respondent also asserts that the appeal was not properly served upon it, warranting dismissal.

I must first address several procedural matters.  Initially, I note that this appeal has a somewhat confusing procedural history.  On August 31, 2017, respondent filed an affidavit in opposition to a request for a stay sought by petitioner in the petition.  However, by letter dated September 12, 2017, my Office of Counsel returned the affidavit to respondent, indicating that no petition initiating an appeal had been filed at that time.  Thereafter, on September 15, 2017, petitioner filed a notice of petition and verified petition, along with two affidavits of service.  One affidavit stated that, on August 25, 2017, petitioner’s papers were served upon a switchboard operator employed in respondent’s district who is authorized to accept service.  The second affidavit of service stated that, on September 14, 2017, “Exhibit C”[1] was served upon an individual identified as respondent’s “Director of Grants” who is authorized to accept service.  On September 25, 2017, respondent served a verified answer to the petition.

Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13).  When the 20-day period ends on a Saturday, Sunday or public holiday, the answer may be served on the next succeeding business day (8 NYCRR §275.8[b]).  I note that calculating the required time for service of respondent’s answer from the August 25, 2017 date set forth in the first affidavit of service would result in the answer being 11 days late.  However, petitioner’s appeal papers were not filed with my Office of Counsel until September 15, 2017 and, in the interim, my Office of Counsel had informed respondent that there was no appeal pending at that time.  I further note that respondent’s answer was served within 20 days of the date set forth in petitioner’s second affidavit of service (September 14, 2017) that is also appended to the petition and states that “Exhibit C” was served upon respondent.  Petitioner has not objected to the timeliness of respondent’s answer and, given the confusion surrounding the service and filing of petitioner’s appeal papers, I have accepted respondent’s verified answer for consideration.

Respondent asserts as an affirmative defense that the appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner has submitted a sworn affidavit of service stating that, on August 25, 2017, the “annexed appeal petition” was served upon respondent’s switchboard operator “who is duly authorized to accept service.”  In its answer, respondent merely states that, “[p]etitioner did not properly serve the school district with the petition.  Upon information and belief, the currently filed Petition was not served upon the School District on the 14th of September.”[2]  Although respondent was provided with a copy of the notice of petition, verified petition, and affidavits of service that were ultimately filed with my Office of Counsel, respondent does not address the August 25, 2017 affidavit of service attesting to service of “the annexed appeal petition” on that date.  Respondent has not submitted any affidavit from the switchboard operator or anyone else indicating that the switchboard operator was not authorized to accept service on behalf of respondent.  I note that respondent had previously submitted affidavits dated August 30, 2017 in response to petitioner’s stay request, which affidavits were returned to respondent due to petitioner’s failure to initially file the petition.  Consequently, it appears that respondent had received papers initiating this appeal prior to August 30, 2017.

As noted, petitioner has submitted a sworn affidavit of service indicating service of “the annexed appeal petition” on August 25, 2017, in which the process server avers that the switchboard operator was authorized to accept service on behalf of respondent.  In view of respondent’s failure to submit any affidavit(s) to the contrary and its failure to address the August 25, 2017 affidavit of service at all, I find that respondent has not met its burden of establishing its affirmative defense.  Therefore, I decline to dismiss the appeal for improper service.

Turning to the merits, 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).  Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187).

Here, petitioner alleges that he and the student’s mother are separated, and that the student resides with him in respondent’s district during the week.  Petitioner claims, therefore, that the student is a resident of respondent’s district and is entitled to attend its schools without payment of tuition.  In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

I find, on this record, that petitioner has not met his burden of proof, and that he has failed to establish that respondent’s determination that his daughter is not a district resident is arbitrary or capricious.  Respondent’s determination was based, in part, on surveillance depicting the student leaving the Hempstead residence early in the morning on eleven days and, on two other days, being dropped off early in the morning at the Freeport address.  The evidence submitted by petitioner explaining the arrangement he purportedly has with the student’s mother is inconsistent.  In his petition, he asserts that the student visits her mother “once during week and on weekends [sic]”; yet, in a statement attached to the petition, he states that “Monday through Friday [the student] resides at my residence with weekends at her mother’s residence in Hempstead, NY.”  In an unsworn statement attached to the petition, the mother states that the student “comes to me on weekends and the summer.”  I further note that, in a sworn affidavit, respondent’s registrar avers that the student’s mother stated that her daughter lived with her and had done so all her life; the registrar stated that the mother also described a “drop off” arrangement that she had with petitioner.

In responding to the surveillance, petitioner states generally that he and the student’s mother “work together” and that “there are days within the normal school week” that the student’s mother picks her up if petitioner and his wife are working.  Similarly, petitioner states that there are times when he “may be on vacation and the student’s mother has her” or “there have been days” when the student was ill, and her mother takes her.  However, other than these general assertions, petitioner does not address any of the specific dates of observation or provide evidence that circumstances existed on those dates warranting the student’s presence in the morning at the Hempstead residence.

Moreover, petitioner has not submitted any evidence establishing his daughter’s physical presence in respondent’s district.  For example, petitioner has presented no affidavits from neighbors or other individuals, medical bills, pictures of the living arrangements, or any other proof of his daughter’s physical presence at the Freeport address.

In light of the lack of evidence from petitioner, the inconsistencies in the statements submitted describing the student’s living arrangements vis-à-vis petitioner and the student’s mother, the mother’s statements to respondent’s registrar, the surveillance establishing the student’s presence in Hempstead and petitioner’s failure to specifically address those dates or provide evidence to explain the surveillance on those dates, I am unable to conclude, on this record, that respondent’s determination that petitioner’s daughter is not a district resident is arbitrary, capricious or unreasonable.  Therefore, I will not substitute my judgement for that of respondent in this instance, and the appeal must be dismissed.

In light of the above disposition, I need not address the parties’ remaining contentions. 

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, should circumstances change, and to submit any documentary evidence for respondent’s consideration.




[1] Exhibit C is a request by petitioner to appear “in [the Commissioner’s] office” on this matter.


[2] This date apparently refers to service of Exhibit C upon respondent.