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Decision No. 18,275

Appeal of J.W., on behalf of her child, from action of the Board of Education of the Gates Chili Central School District regarding residency.

Decision No. 18,275

(May 17, 2023)

Harris Beach PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates Chili 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 district in September 2019 based on her representation that she and the student reside within the district (the “in-district address”).  In October 2022, respondent obtained information suggesting that petitioner did not reside within the district.  Respondent thereafter commenced a residency investigation, which included surveillance.  Respondent concluded that petitioner and the student resided outside of the district and excluded the student from its schools as of January 3, 2023.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 11, 2023.

Petitioner contends that the student resides with her at the in-district address and is entitled to attend respondent’s district tuition free.

Respondent argues that the appeal must be dismissed for improper service.  On the merits, respondent argues that petitioner failed to meet her burden of proof and that its determination was not arbitrary or capricious.

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 demonstrates that the petition was served on a receptionist employed by respondent.  The receptionist submitted an affidavit indicating that she is not authorized to accept service on behalf of the district.  Petitioner did not submit a reply or otherwise respond to this contention.  Accordingly, I am constrained to dismiss the appeal for improper service (see Appeal of Lang, 62 Ed Dept Rep, Decision No. 18,164; Appeal of M.C., 61 id., Decision No. 18,087).

While I am constrained to dismiss the appeal for improper service, I note that respondent’s surveillance evidence was far from overwhelming.  While the investigator frequently observed the student, 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 [1991]).  Since there is no evidence in the record to rebut this presumption, the student’s residency is dependent upon petitioner’s residency.  Respondent’s investigator, however, caught only brief glimpses of petitioner and her vehicle and did not observe the location where petitioner claims to reside.  This diminishes the probative value of respondent’s surveillance evidence.

Petitioner 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.