Decision No. 18,185
Appeal of V.G., on behalf of her child, from action of the Board of Education of the Williamsville Central School District regarding residency.
Decision No. 18,185
(August 19, 2022)
Harris Beach, PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her child (“the student”) is not a district resident. The appeal must be sustained.
In September 2021, petitioner contacted respondent, seeking to enroll the student in its schools. At that time, petitioner and the student resided outside of respondent’s district in Buffalo, New York (the “out-of-district address”). In support of her request, petitioner submitted a lease for an apartment located within respondent’s district (the “in-district address”) with a rental term that commenced October 1, 2021.
By letter dated September 9, 2021, respondent’s coordinator of student services (“coordinator”) allowed the student to attend the district’s schools with the understanding that he would establish residency shortly thereafter. The letter informed petitioner that the district would commence a residency investigation if it appeared that she had not established residency by October 15, 2021.
According to the coordinator, district employees informed her in October 2021 “that the [s]tudent had directly told them on various occasions” that he was living at the out-of-district address with his father, sister, and petitioner. Thereafter, on October 19 and 20, 2021, an investigator retained by respondent (the “investigator”) conducted surveillance at the in-district address. The investigator reported that “the student was [not] observed at this address ... [but] was present in school.” The investigator also observed the student being driven from the out-of-district address in a car registered to petitioner on the mornings of October 22, 25, and 27, 2021.
By letter dated October 27, 2021, the coordinator informed petitioner of her determination that the student had not established residency within the district and would be excluded as a non-resident as of November 7, 2021.
On October 28, 2022, petitioner told the coordinator that she and the student had left the in-district address for a few days due to a lack of heat, but had since returned to the apartment. Petitioner further indicated that she was attempting to secure Home Energy Assistance Program (HEAP) benefits. The coordinator allowed the student to remain in school for two additional weeks, through November 19, 2021.
The investigator conducted additional surveillance of the in-district address on the afternoon of November 8, 2021 and observed “no activity” therein. On the following morning, November 9, the investigator did not observe the student at the in-district address, but later witnessed petitioner arriving at the school in her car and dropping the student off.
In a letter to petitioner dated November 18, 2021, the coordinator requested the following: (1) an affidavit from the owner of the in-district address; (2) a postal change of address form; (3) a paystub or HEAP approval notification; and (4) the conditions upon which petitioner would agree to a home visit. Upon receipt of this information, the coordinator committed to review its previous determination of non-residency.
In an email dated November 19, 2021, petitioner sent the coordinator a change of address order form, paystub, and a fuel statement, each identifying the in-district address as her address. In her email, petitioner informed the coordinator that she did “not feel comfortable with people visiting [her] household …” due to the COVID-19 pandemic. Petitioner proposed a virtual meeting instead; respondent did not accede, or respond, to this request.
By email dated November 19, 2021, the coordinator informed petitioner that “without the affidavit from the landlord and the opportunity to conduct a home visit[,] the determination of non-residency continues to stand.” The coordinator informed petitioner that the student would not be permitted to attend respondent’s schools after November 19, 2021. This appeal ensued. Petitioner’s request for interim relief was granted on December 8, 2021.
Petitioner contends that she and the student reside within respondent’s district. She admits that she temporarily left the in-district address in October 2022 due to “a delay in getting heat service turned on” and that she receives occasional assistance from the student’s father “due to [her] work and school schedule.” Petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its schools without payment of tuition.
Respondent asserts that the petition must be dismissed for lack of the required notice. On the merits, respondent argues that its determination is supported by its surveillance evidence and affidavits from district employees.
First, I must address several procedural issues. Respondent contends that the petition must be dismissed as it was not served with a copy of the notice of petition. The copy of the petition received by the Office of Counsel, however, contains the requisite notice. In the related context of verification, the Commissioner has held that “[a] defect in … the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification” (Appeal of B.D., 61 Ed Dept Rep, Decision No. 18,016 [citing Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904]). I find that the same reasoning applies here. While respondent’s non-receipt of this notice may have excused a late answer, it does not require dismissal of the appeal under the circumstances.
Respondent also objects to the admission of two exhibits. The first, Exhibit T, consists of a statement from a physician as to what special education services are appropriate for the student. The record reflects that petitioner did not serve a copy of this exhibit on petitioner. Therefore, I have not considered it in reaching my determination (Appeal of Koehler, 46 Ed Dept Rep 425, Decision No. 15,553). Respondent also objects to Exhibit Q, photographs that purportedly depict the out-of-district address, as “barely visible.” The copies of the photographs transmitted to the Office of Counsel, are sufficiently clear. Therefore, even though their probative value is minimal, I have accepted these photographs into the record.
Finally, respondent submits additional surveillance from December 2021 with its answer. The Commissioner has the discretion to consider additional evidence that was not submitted at the local level (e.g., Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; Appeal of Leach, Jr., 58 id., Decision No. 17,653), particularly with respect to disputes regarding issues of residency (see generally Appeal of G.D. and D.D., 59 Ed Dept Rep, Decision No. 17,797, Matter of Dukes v Cold Springs Harbor Cent. School Dist. Bd. Of Educ.; Supreme Court, Albany County (Walsh, J.); Decision/Order/Judgment dismissed petition to review [observing that “[s]tatuses such as residency and homelessness … may be fluid in nature”]). Petitioner did not submit a reply or otherwise object to the admission of this evidence. Therefore, I have accepted this evidence and considered it in reaching my determination.
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 submits the following documents that identify her address as the in-district address: a lease, welcome letter, bills from utility service providers, paystubs, a change of address form, and the student’s medical insurance card.
In response, respondent relies on its surveillance evidence and affidavits from district teachers. This evidence supports a finding that petitioner spends time at both the in-district and out-of-district addresses. Excluding the surveillance evidence from late October 2021—a period of time where petitioner admits, and respondent does not contest, that she and the student temporarily left the in-district address due to a lack of heat—respondent conducted four relevant days of surveillance. This surveillance depicted the student departing the in-district (December 10 and 14) and out-of-district (November 9 and December 13) addresses in equal measure. On each day of surveillance, an investigator observed the student leaving the in-district or out-of-district addresses in the morning, entering a car with petitioner or his father, and driving to school. Affidavits from two educators similarly support a finding that petitioner and the student have resided at both the in-district and out-of-district addresses. The educators recount statements made by the student, who was seven years old at the time, suggesting that, on various dates, he stayed at the in-district and out-of-district addresses.
Respondent’s four days of relevant surveillance and hearsay statements from the student are insufficient to establish that the out-of-district address is the student’s primary residence. The instant appeal is similar in all material respects to Appeal of J.R. (57 Ed Dept Rep, Decision No. 17,184), where petitioner spent occasional nights outside of the district and the district’s limited surveillance evidence showed “[a]t best … that petitioner drove the students from the out-of-district address to the in-district address for bus pick-up once and that petitioner or her boyfriend drove the students to the in-district address twice for bus pick-up.” As in Appeal of J.R., petitioner provides an explanation—that she receives occasional assistance from the student’s father “due to [her] work and school schedule”— explaining her occasional presence outside the district. Petitioner is not required to spend every night of the week at the in-district address and cannot control which dates respondent chooses to conduct surveillance. As such, while the evidence is close, I find that petitioner has sufficiently demonstrated her residence within the district (see Appeal of Students with Disabilities, 58 Ed Dept Rep, Decision No. 17,467 [district’s four days of surveillance found to be “limited and inconclusive” under the circumstances]).
Appeal of Jiang (59 Ed Dept Rep, Decision No. 17,717), cited by respondent, is distinguishable. The district’s surveillance evidence in that appeal exclusively portrayed the student at the out-of-district address (“neither petitioner nor her daughters were ever observed leaving for school from, or returning from school to, the in-district address”]).
Nothing in this decision limits respondent’s authority to establish a more complete picture of the student’s physical presence through additional surveillance. Until that time, however, respondent must admit the student to its schools.
I have considered respondent’s remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent shall admit the student to the schools of the district without the payment of tuition.
END OF FILE
 While “investigator” is used generically herein, the record reflects that respondent engaged an investigative firm that utilized multiple investigators.
 Appeal of Pierre, Sr., cited by respondent, is distinguishable (57 Ed Dept Rep, Decision No. 17,270). In that appeal, the petition was dismissed because the petitioner did not initially submit a copy of the notice of petition to the Office of Counsel and failed to correct the deficiency as directed.
 The notice of petition is a procedural device to ensure that respondents are apprised of their obligation to answer the allegations in the petition within 20 days of service thereof (see Tinker Ltd. P'ship v. Berg, 26 Misc 3d 1214(A), 2010 NY Slip Op 50096[U] [Nassau Dist Ct 2010] [“[a] central purpose of the Notice of Petition is to give the respondents adequate notice of the time, place, and manner in which to respond to a proceeding being commenced against them”]).
 I attach no significance to petitioner’s reluctance to agree to a home visit during a “surge” of COVID-19 cases and on the eve of a visit to a relative. As noted above, petitioner offered to conduct the visit through a video conference, a reasonable alternative that respondent declined.
 I do not find the surveillance on a fifth day, December 8, probative as it involved surveillance of the in-district address at approximately 2:00 p.m. The record does not reveal the departure time of the school the student attends, whether he rides (or ever rode) the bus, or what time he might be reasonably expected to return home.