Decision No. 18,178
Appeal of M.K., on behalf of his children and siblings, from action of the Board of Education of the City School District of the City of Lackawanna regarding residency.
Decision No. 18,178
(August 18, 2022)
Louis P. Violanti, Esq., attorney for respondent
ROSA., Commissisoner.--Petitioner appeals a determination of the Board of Education of the City School District of the City of Lackawanna (“respondent”) that his children and siblings (the “students”) are not district residents entitled to attend the district’s schools tuition-free. The appeal must be dismissed.
Prior to the events leading to this appeal, the students attended respondent’s schools as district residents. Respondent began investigating the students’ residency in January 2022 after mail sent to petitioner’s residence (the “in-district address”) was returned with the notation “return to sender.” Respondent’s investigation revealed that the students resided outside of the district (the “out-of-district address”). Thereafter, respondent excluded the students from the district. This appeal ensued. Petitioner’s request for interim relief was granted on February 16, 2022.
Petitioner asserts that the students split their time between the in-district and out-of-district addresses. Petitioner also asserts that the students are temporarily absent and that they will shortly move to a residence within the district. Petitioners request a determination that the students are residents of the district entitled to attend its schools tuition free.
Respondent argues that the appeal should be dismissed for improper service. On the merits, respondent argues that petitioners have failed to meet their burden of proving that the students are district residents.
Turning first to the procedural issue, 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). A respondent bears the burden of proof to establish any affirmative defenses (8 NYCRR 275.12 [a]; see also Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).
Here, petitioner’s affidavit of service states that the petition was served on an individual named “Ryan,” who is identified as both a “receptionist” and the “superintendent.” Both superintendents and “person[s] in the office of the superintendent who ha[ve] been designated by the board of education to accept service” are authorized to accept service (8 NYCRR 275.8 [a]). Therefore, while somewhat unclear, I find that this affidavit constitutes prima facie evidence of proper service (Dunn v Pallett, 42 AD3d 807, 808 [3d Dept 2007]). Respondent submits no evidence to rebut this showing, merely asserting “that the Petition was not served properly ….” Accordingly, respondent has not met its burden of proving its affirmative defense (see Appeal of S.V., 61 Ed Dept Rep, Decision No. 18,097).
Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 ; 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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has failed to meet his burden of proving that the students reside in respondent’s district. Petitioner submits no proof with the petition, merely asserting that his “entire family” had planned to move into a residence within the district by April 2022. Despite this contention, petitioner did not reply to a July 29, 2022 request from the Office of Counsel as to whether the students, in fact, relocated to respondent’s district. Respondent, by contrast has submitted a surveillance report and an affidavit from its attendance teacher and McKinney-Vento liaison indicating that petitioner admitted, in February 2022, that his family did not reside within the district. Accordingly, petitioner has failed to meet his burden of proof and the appeal must be dismissed.
Petitioner retains the right to reapply for admission to respondent’s schools on the students’ behalf as district residents at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner brings this appeal on behalf of his children and his younger siblings. It is unclear if petitioner has legal custody of his younger siblings. Given the disposition of this appeal, and for ease of reference, the children and siblings are referred to herein as “the students.”
 Respondent’s argument that the appeal should be dismissed because it was not served with a copy of the affidavit of service is without merit (Appeal of Manfredo, 56 Ed Dept Rep, Decision No. 16,943).