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Decision No. 17,779

Appeal of S.S. and G.S., on behalf of L.S. and R.S., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,779

(October 30, 2019)

Ingerman Smith, LLP., attorneys for respondent, Diana M. Cannino, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that their children, L.S. and R.S. (collectively, “the students”), are not district residents.  The appeal must be sustained.

According to the record, the students have been enrolled in respondent’s schools since January 2018.  At that time, petitioners indicated that they resided an at address located in Baldwin, New York (“the in-district address”).  During the 2018-2019 school year, the district conducted an investigation into petitioners’ residency based upon alleged comments made by student R.S. to his teachers on January 8, 2019, that he and his family had moved back to their old apartment in Queens, New York (“the out-of-district address”).  Respondent thereafter conducted a residency investigation, which included surveillance of the in-district address on 12 early morning weekdays and surveillance of the out-of-district address on 11 early weekday mornings between the dates of January 10, 2019 and January 28, 2019.  On eight[1] occasions, the students were seen exiting the out-of-district address with petitioner G.S.  On three occasions, the students were seen exiting the in-district address with either petitioner S.S. or G.S.

In a letter dated January 29, 2019, respondent’s director of pupil services (“director”) notified petitioners that it had reason to believe that the students did not reside within its district.  Respondent offered to meet with petitioners on February 8, 2019 “to discuss the factual basis for this conclusion” and to present petitioners with an opportunity to submit additional documentation supporting their claim of residency within the district.

According to the record, respondent conducted additional surveillance on Saturday, February 2, 2019 and Sunday, February 3, 2019 at the out-of-district address.  Respondent’s investigator indicates that he “observed” petitioner S.S.’s “tan Honda vehicle ... parked behind a locked gate” at the out-of-district address on both of these dates.

Petitioners thereafter met with the director on February 8, 2019.  At this meeting, petitioner S.S. indicated that the out-of-district address belonged to her father.  Petitioner S.S. further asserted that she worked at LaGuardia Airport and the students occasionally stayed at her father’s apartment located at the out-of-district address when she was required to work overnight.  According to the director, she inquired into petitioners’ work schedules and petitioners did not provide any specific details concerning their work hours.  Petitioners deny this allegation, asserting that the director did not ask any specific questions concerning their work hours at the meeting.  The director further inquired as to why petitioners’ car was observed at the out-of-district address one weekend; petitioner S.S. stated that the family went to the Poconos that weekend, and the car was left at the out-of-district address for her mother-in-law to use.  Petitioners invited the director to conduct a home visit at a time and date selected by petitioners, but the director declined this invitation.  Petitioners also provided additional documentary evidence bearing their names and the in-district address.

In a letter dated February 12, 2019, the director notified petitioners of respondent’s determination that the students were not district residents and would be excluded from the district’s schools, effective February 15, 2019.  This appeal ensued.  Petitioners’ request for interim relief was granted on March 1, 2019.

Petitioners assert that they reside at the in-district address and question the validity of the observations made by respondent’s investigator.  Petitioners submit documentary evidence and offer explanations for their presence at the out-of-district address.  Petitioners request a determination that the students are district residents entitled to attend respondent’s schools without payment of tuition.

Respondent asserts that petitioners and the students reside at the out-of-district address.  Respondent asserts that its residency determination is supported by the record and is neither arbitrary nor capricious.

First, I must address a procedural issue.  Petitioners submit 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

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).

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 petitioners have met their burden of proving that the students physically reside at the in-district address.  On appeal, petitioners provide substantial documentation bearing one or both of their names and the in-district address:  (1) 2018 Internal Revenue Service Form 1099-INT; (2) bank statements (various dates from October 2018 to January 2019; (3) a copy of a 401k retirement plan statement accessed on February 4, 2019; (4) paystubs and paychecks from August 2018 through February 2019; (5) voter registration information accessed from the Board of Elections’ website on February 8, 2019; (6) drivers’ licenses issued on March 22, 2013 (petitioner S.S.) and September 19, 2019 (petitioner G.S.); (7) vehicle title and registration information; (8) cell phone statements from November 2018 through February 2019; (9) a mortgage statement for the in-district address due on February 1, 2019; (10) photographs of the exterior and interior of the in-district address purporting to prove that petitioners’ maintain their residency at the in-district address; and (11) correspondence from an insurance company on various dates in January 2019.

Nevertheless, respondent argues that the students do not reside within its district, relying on comments made by student R.S. to his teachers, who was eight years old at the time, its surveillance evidence, and the address printed on the label of a prescription drug bottle dispensed to student R.S.  With respect to R.S.’s comments, respondent alleges that R.S. told his teachers that his family moved back to their former residence located at the out-of-district address.  The director further indicates in her affidavit that, on or about January 8, 2019, the student told “his classroom teacher and English as a New Language ... teacher that he was happy that his family had moved back to their old apartment in Queens.”  The director additionally reports that R.S. told his teachers “that he gets home late because of traffic and cannot eat breakfast in the morning because the apartment is so far from school.”

While I have considered the student’s alleged comments, I do not find the statements allegedly made by R.S. regarding his family’s place of residency to be dispositive of the students’ residency.  First, the record supports a finding that petitioner S.S.’s work schedule requires occasional overnight or late-night work.  Petitioner S.S. submits a signed letter from the president of her employer in which the president states:  “[t]here are days and weeks where [petitioner] has worked at our LaGuardia Airport facilities overnight, ending her shift at 1 AM or 2 AM in the morning.”  Petitioners further explain that petitioner S.S. had such an assignment in January 2019 during respondent’s period of surveillance; that the out-of-district address is closer to LaGuardia Airport; and that, when petitioner S.S. is working late, petitioner G.S. will drive the students to the out-of-district address to accommodate petitioner S.S.’s work schedule and minimize petitioner S.S.’s nighttime driving.  Given student R.S.’s young age and petitioners’ reasonable explanation for their presence at the out-of-district address during the course of respondent’s surveillance, I do not find student R.S.’s alleged comments dispositive of the students’ residency.

With respect to the surveillance evidence, I find that the reports contain a significant inconsistency that diminishes the probative value of such reports.  While the surveillance conducted on February 2 and 3, 2019 reported that one of petitioners’ vehicles was parked in a driveway near the out-of-district address, petitioners have submitted New York State E-Z Pass records that demonstrate that petitioners drove the vehicle in question to the Poconos for a family weekend trip on those dates.  These records demonstrate that petitioner has registered a single vehicle with her E-Z Pass account and that the vehicle registered to her account entered toll plazas in or around the Poconos on the weekend of February 2 and 3, 2019.  Although the E-Z Pass records submitted by petitioner do not identify the plate number for the vehicle, it is a logical inference that this refers to the vehicle described in the surveillance report, which is the only vehicle petitioner has registered with E-Z Pass.  Thus, respondent’s surveillance evidence is entitled to diminished weight under the circumstances.

Respondent also relies upon the address listed on the label of student R.S.’s prescription medicine bottle in support of its determination that petitioners do not reside at the in-district address.  The record reflects that petitioner submitted a photograph to a teacher depicting a prescription medication label for student R.S. bearing the out-of-district address.  In response, petitioners explain that they previously resided at the out-of-district address and have not yet updated their address records with the pharmacy.  Moreover, petitioners point out that the photograph of the medication was taken at the in-district address, which is depicted in the background of the photograph.  Petitioners also assert that the medication for student R.S. was ordered in an emergency and, therefore, they did not order it online, as is their usual practice.  On this record, I find that petitioners have offered a reasonable explanation for the address on the medication and do not find that it constitutes persuasive evidence of the students’ residency.

Therefore, based on the record before me, I find that petitioners have provided a reasonable explanation for the students’ presence at the out-of-district address during this time period (see e.g. Appeal of Mirza, 57 Ed Dept Rep, Decision No. 17,128).  Thus, although petitioner S.S. and the students were observed at the out-of-district address on multiple occasions, I do not find such surveillance dispositive of their residency under the circumstances (see Appeal of Elkareh, 45 Ed Dept Rep 177, Decision No. 15,294; Appeal of Klipper, 43 id. 95, Decision No. 14,932; Appeal of Seger, 42 id. 266, Decision No. 14,849).

Finally, although respondent was not required to perform a home inspection in order to determine the students’ residency, I note that petitioners agreed to permit an inspection of the in-district address and respondent declined the offer.  While the parties’ inability to agree to the conditions of a home visit has limited value concerning the students’ residency, I nevertheless find that respondent’s refusal to consider scheduling a home visit does not inure to its benefit.[2]

Based upon the record before me, I conclude that petitioners have met their burden of proving that the students reside within the district.  Thus, respondent’s determination to the contrary was arbitrary and capricious.  If respondent remains concerned that petitioners and the students do not actually reside within its district, it may collect evidence through surveillance, home visits, or other means (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).  While respondent is free to investigate further in accordance with §100.2(y) of the Commissioner's regulations, in the interim, it must admit the students to its schools (see e.g. Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933).

In light of this disposition, I need not address the parties’ remaining arguments.


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



[1] Although respondent asserts that petitioner and the students exited the out-of-district address on nine mornings, the surveillance reports submitted as part of this appeal reflect only eight such occasions.


[2] The director explains that she declined this offer because petitioners insisted upon setting up a date and time, and “[a]s a matter of practice, the District conducts home visits for residency purposes at times determined by staff availability and does not schedule such visits in advance.”  Petitioners explain that they wished to schedule a time because they both work and wanted to ensure that they would be home.