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Decision No. 18,176

Appeal of A.G., on behalf her child, from action of the Board of Education of the Lewiston-Porter Central School District regarding residency.

Decision No. 18,176

(August 18, 2022)

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination by the Board of Education of the Lewiston-Porter Central School District (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

Petitioner enrolled the student in respondent’s schools in November 2021, representing that she and the student resided with the student’s grandmother within the district (the “in-district address”).  Respondent thereafter commenced an investigation into the student’s residency.  Based upon the results of this investigation, the district concluded that petitioner and the student resided at their previous address located outside of the district (the “out-of-district address”).  This appeal ensued.  Petitioner’s request for interim relief was granted on March 29, 2022.

Petitioner contends that the student resides with her and the student’s grandmother at the in-district address.  She seeks a determination that the student is a resident of the district entitled to attend its schools tuition free.   

Respondent maintains that the appeal must be dismissed for improper service and because its evidence shows that the student resides at the out-of-district address. 

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’s affidavit of service indicates that the petition was served on a payroll clerk employed by the district.  The payroll clerk submits an affidavit in which she avers that she is not authorized to accept service on the district’s behalf.  Petitioner did not submit a reply or otherwise respond to this contention.  When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Terry, 50 Ed Dept Rep, Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).

Although I am constrained to dismiss the appeal for improper service, respondent’s surveillance evidence—the report of which was not submitted by respondent on appeal—appears to have been far from overwhelming.  I remind petitioner that she retains the right to reapply to the district for admission of the student at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (see Appeal of Williams, 51 Ed Dept Rep, Decision No. 16,302; Appeal of Braxton-Strohman, 50 id., Decision No. 16,183).

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