Decision No. 18,314
Appeal of GERALDINE MONTREUIL, on behalf of her child, from action of the Board of Education of the Nanuet Union Free School District regarding residency.
Decision No. 18,314
(July 31, 2023)
Mario L. Spagnuolo, Esq., attorney for respondent
ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Nanuet Union Free School District (“respondent”) that her child (the “student”) is not a district resident and, therefore, not entitled to attend the district’s schools tuition-free. The appeal must be dismissed.
The student was enrolled in respondent’s schools in fall 2023 based upon petitioner’s representation that she and the student resided with the student’s aunt within the district (the “in-district address”). Respondent thereafter conducted a residency investigation, which included four days of surveillance. On January 31, 2023, an investigator observed petitioner drive the student to the in-district address in the morning. The student then walked to the bus stop. Petitioner drove away approximately ten minutes after the student boarded the bus. The investigator observed similar circumstances on the morning of February 1, 2023. Additionally, later that evening, the investigator observed petitioner and the student leaving the in-district address at approximately 4:35 p.m. in the direction of Spring Valley, New York. The investigator also encountered a neighbor, who inquired as to what the investigator was doing. The investigator indicated that he was on a confidential assignment. Following this interaction, the investigator became “very concerned that [the] neighbor would advise the subject of [the] observation prior to ... concluding th[e] case.” The investigator proceeded to conduct two additional days of surveillance and observed the student “leav[ing] from” the in-district address. He attributed this to the neighbor “likely ... inform[ing] [petitioner or her family] ... of the surveillance.”
Respondent additionally learned that, on or about September 16, 2022, petitioner commenced a civil action against a property owner and contractor for negligence in Supreme Court, Rockland County. In the complaint, petitioner averred that she resided at a location in Spring Valley, New York (the “out-of-district address”). Petitioner repeated this sworn assertion in a verified bill of particulars dated January 20, 2023.
Based on the above information, respondent concluded that petitioner resided at the out-of-district address. Respondent thereafter informed petitioner of its determination that the student was not a district resident and would be excluded from its schools. This appeal ensued. Petitioner’s request for interim relief was granted on March 17, 2023.
Petitioner maintains that she and the student reside with the student’s aunt at the in-district address. Petitioner requests that the student be allowed to attend respondent’s schools tuition free.
Respondent contends that petitioner does not reside within the district as she has admitted in the civil action.
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).
Upon review of the record, I find that the weight of the evidence supports respondent’s contention that petitioner and her son are not residents of respondent's school district. Even viewing the surveillance evidence in the light most favorable to petitioner, she has offered no explanation as to why she was observed driving to and from the out-of-district address—or why she identified it as her address as recently as January 20, 2023 (compare Appeal of V.G., 62 Ed Dept Rep, Decision No. 18,185). Respondent asserts that public records, including Department of Motor Vehicles records, associate petitioner and two of her vehicles with the out-of-district address. I find this evidence far more persuasive than the evidence petitioner submits on appeal, which consists of affidavits from petitioner and her landlord, a residency questionnaire, and a bank statement.
THE APPEAL IS DISMISSED.
END OF FILE
 The record does not contain a copy of the letter excluding the student from the district. Nevertheless, petitioner admits that she received a copy of this letter and was thereafter able to submit information concerning the students’ right to attend school in the district (see 8 NYCRR 100.2 [y] ).