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Decision No. 18,321

Appeal of M.D., on behalf of her child, from action of the Board of Education of the Riverhead Central School District regarding residency.

Decision No. 18,321

(August 7, 2023)

Guercio & Guercio, LLP, attorneys for respondent, Ashley C. Pope, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Riverhead Central School District (“respondent” or the “district”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

Prior to the events described herein, the student attended respondent’s school district.  In March 2021, the district received a report that the student was no longer living in the district and asked petitioner to provide proof of her residency.  In or about March 2021, petitioner asserted that she and the student resided at a home located in the district owned by the student’s grandmother (the “in-district address”) and submitted a landlord affidavit in connection therewith.  Based on this evidence, respondent allowed the student to remain enrolled in the district.

In January 2023, respondent received a report that the student was no longer living in the district.  Shortly thereafter, in a meeting with a school social worker, the student stated that she did not live at the in-district address, but, rather, “gets dropped off at her grandmother’s [in-district address] in the morning to take the bus, and that [she] sleeps elsewhere at night.”  The student asked to call petitioner and, upon reaching her by telephone, was overheard saying “[t]hey know we don’t live with gramma.” Thereafter, respondent asked petitioner to supply proof of the student’s residency in the district. 

At a February 6, 2023 meeting with respondent, petitioner stated she had rented, for four years, an apartment for her and the student located outside of the district (the “out-of-district address”).  Petitioner further asserted that, due to her need to work overnight shifts, she drops off the student with her grandmother at the in-district address for childcare purposes and to ensure that the student can attend school in the district.  In a telephone conversation later that day, the student’s grandmother confirmed that the student “comes to her to get on and off buses” but did not live at the in-district address.

By letter dated February 8, 2023, respondent informed petitioner of its determination that the student was not a district resident and would be excluded at the end of the day on February 17, 2023.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 23, 2023.

The appeal must be dismissed for failure to state a claim upon which relief can be granted.  A petition must contain “a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR 275.10).  Such statement must be “sufficiently clear” to advise the respondent of the nature of the petitioner's claim and of the specific act or acts of which the petitioner complains (id.). Where the petitioner is not represented by counsel, the Commissioner will interpret this regulation liberally, absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Nevertheless, where a petition fails to state a comprehensible claim or fails to identify the specific remedy sought, the appeal must be dismissed (see Appeal of Egan, 62 Ed Dept Rep, Decision No. 18,213; Appeal of C.P., 55 id., Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).

The petition in this matter purports to be a “memorandum of law” and is written from the vantage point of a school district.  For example, “Point I” in the memorandum of law is captioned:  “Petitioner has failed to establish her residency within the district” and states therein that “the district complied with all procedural safeguards in excluding [the student] from school.”[1]  As such, the petition concludes that petitioner’s child, who is specifically identified by name, “is not eligible to continue to attend the district’s schools” and requests that the “Verified Petition be dismissed in its entirety ....”  Even affording petitioner a liberal interpretation of 8 NYCRR § 275.10, I find that she has failed to set forth a clear and concise statement of her claim.  Accordingly, the petition must be dismissed for failure to state a claim upon which relief may be granted (see Application of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,398; Appeal of C.P., 55 id., Decision No. 16,784).  In any event, I note that respondent has submitted ample evidence in support of its residency determination such that it cannot be considered arbitrary or capricious.

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




[1] It appears that petitioner modified a memorandum of law submitted by a school district in a previous appeal to the Commissioner.