Decision No. 18,322
Appeal of RENEE PASSARO, on behalf of her child, from action of the Board of Education of the Center Moriches Union Free School District regarding residency.
Decision No. 18,322
(August 9, 2023)
Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Center Moriches Union Free School District (“respondent”) that her child (the “student”), is not a district resident. The appeal must be dismissed.
Prior to the events described in this appeal, the student attended respondent’s schools as a district resident. In or about June 2022, petitioner informed respondent that she had moved to a home within the district owned by the student’s aunt (the “in-district address”).
In September 2022, the district received an anonymous letter alleging that petitioner sold her home and moved to a location outside of the district. The letter alleged that petitioner “live[s] in Manorville and simply bought Center Moriches PO Boxes to lie about [her] ... residency.” The district also received a letter marked “returned to sender” that it sent to petitioner at her previous in-district address. This letter contained a forwarding address in Manorville, New York (the “out-of-district address”). Respondent proceeded to conduct four days of surveillance of the in-district and out-of-district addresses. On each of the four days, the student’s sister was observed driving the student from the out-of-district address to respondent’s high school.
In a letter dated October 27, 2022, respondent invited petitioner to submit information concerning the students’ right to attend school in the district. Petitioner met with respondent’s assistant superintendent for student services, personnel, and instructional technology on November 4, 2022. At this meeting, petitioner asserted that she and the students resided at the in-district address with their aunt. She further indicated that she and the students’ father jointly own the home at the out-of-district address and that the students “occasionally” spent time with their father, from whom she was separating, at the out-of-district address.
Respondent proceeded to conduct eight additional days of surveillance. The investigator observed the student’s sister leaving from the out-of-district address on each morning. The investigator also observed the student riding with his sister on two occasions, after which time he was dropped off at respondent’s high school. Additionally, on one occasion, the investigator spoke with the student’s aunt at the in-district address. The aunt indicated that petitioner “had just left [the in-district address] to go to work.” The aunt further asserted that petitioner, the student, and his sister resided at the in-district address.
In a letter dated January 3, 2023, respondent notified petitioner of its determination that the student was not a district resident and would be excluded from the district as of January 13, 2023. This appeal ensued. Petitioner’s request for interim relief was granted on January 18, 2023.
Petitioner argues that the student lives with his aunt at the in-district address during most weekdays but visits his father at the out-of-district address “2 days a week.” Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s school tuition-free.
Respondent argues that petitioner has not met her burden to establish that she and the student are district residents.
First, I must address a procedural matter. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
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).
Where a child’s parents live apart, the child can have only one legal residence (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Helms, 36 id. 95, Decision No. 13,668). In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence for purposes of Education Law § 3202 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Cortes, 37 id. 114, Decision No. 13,818). However, in the absence of proof that the child’s time is indeed divided between both households, the child’s residency must be determined by the traditional test requiring physical presence in the district and intent to remain (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).
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).
Initially, the record reflects, as petitioner asserts, that she resides at the in-district address with her sister. Petitioner submits significant documentary evidence in support of her residency with the petition; namely, a notarized statement from the student’s aunt, a town tax bill, a copy of her New York State driver’s license, credit card bills from November 2022, a certified mail receipt, payroll stubs from October 2022, and a November 2022 phone bill. Moreover, petitioner’s sister confirmed to the investigator that petitioner resides with her at the in-district address.
While less clear, the evidence in the record also supports a finding that the students’ father resides at the out-of-district address. Petitioner asserts as much in the petition, to which respondent indicates that it lacks “knowledge and information sufficient to form a belief.” However, on November 17, 2022, respondent’s investigator observed “a male[,] possibly the student’s father” departing from the out-of-district address on the morning of November 17, 2022. While not overwhelming, this evidence supports a finding that the student’s father resides at the out-of-district address. As such, to prevail, petitioner must prove that the students’ time is essentially divided between the in- and out-of-district addresses.
On this record, I am unable to conclude that petitioner has made this showing. As stated above, petitioner indicated that she was in the process of separating with the student’s father and the student visited his father at the out-of-district address “2 days a week.” Respondent conducted surveillance on eleven school day mornings and: (1) directly observed the student departing the out-of-district address on six mornings; and (2) never observed the student departing the in-district address. While it is possible that these observations coincided with the “2 days per week” schedule identified by petitioner, it is not probable given the amount of surveillance conducted by respondent (Appeal of Lajuett, 60 Ed Dept Rep, Decision No. 17,919; see also Appeal of Keating, 59 Ed Dept Rep, Decision No. 17,744; Appeal of Allen, 59 id., 17,726). Moreover, the aunt’s representation that both students resided at the in-district address is contradicted by respondent’s observation of the student’s sister leaving the out-of-district address on ten out of eleven school mornings. Thus, while close, I find that respondent’s residency determination is sufficiently supported by the record such that it cannot be considered arbitrary or capricious (see Appeal of Atkinson, 50 Ed Dept Rep, Decision No. 16,086).
While the appeal must be dismissed, if the student’s circumstances change—due to, for example, a court-ordered separation agreement recognizing that his time is essentially divided between the in- and out-of-district addresses—petitioner may reapply to respondent for the student’s admission.
In light of this disposition, I need not consider the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The record reflects that the student’s older sister was a high school senior who, pursuant to board policy, was allowed to finish the 2022-23 school year irrespective of her residency status.
 The record reflects that the student attends the Center Moriches Middle School, which is located in the same building as the Center Moriches High School.