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Decision No. 18,298

Appeal of Y.F., on behalf of her children, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 18,298

(June 29, 2023)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that her children (the “students”) are not district residents.  The appeal must be dismissed.

Petitioner initially enrolled the students in the district at some point prior to August 2020.[1]  According to an affidavit from the district’s assistant superintendent for educational and administrative services, in or about August 2020, respondent suspected that the students were not district residents.  Over the course of the next two years, respondent conducted surveillance at several different in-district addresses at which petitioner claimed to live.  On three occasions, respondent notified petitioner that the students would be excluded from the district’s schools.  As relevant to this appeal, respondent excluded the students effective December 23, 2022.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 26, 2023.

Petitioner contends that she and the students reside within respondent’s district and are entitled to attend its schools without payment of tuition.

Respondent asserts that the petition must be dismissed for improper service.  On the merits, respondent argues that its determination is supported by surveillance evidence and affidavits from district employees.

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 appeal includes two affidavits of service, neither of which reflect valid service of the petition.  The first indicates that a process server served the petition by “leaving [it] at the mail box” at a district school on January 5, 2023.  “[S]ervice by U.S. mail does not constitute valid service of a petition pursuant to Education Law § 310” (Appeal of Musso, et al., 60 Ed Dept Rep, Decision No. 17,936).  The second indicates that, on January 13, 2023, the process server left the petition with “Jessy” at respondent’s district office.  Respondent asserts that the individual who accepted the petition on the second attempt is a school district employee who 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 (Appeal of M.C., 61 Ed Dept Rep, Decision No. 18,087; Appeal of Litton, 47 id. 277, Decision No. 15,695).

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




[1] The record does not indicate the date of the students’ original enrollment.