Skip to main content

Decision No. 18,330

Appeal of I.M., on behalf of her child, from action of the Board of Education of the Malverne Union Free School District regarding residency and homelessness.

Decision No. 18,330

(August 17, 2023)

Solomon Herrera McCormick, PLLC, attorneys for petitioner, Daniel J. Herrera, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Bryan Georgiady, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”), that her child, E.M-S., (the “student”) is not a district resident.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Petitioner is the student’s mother.  According to respondent, petitioner registered the student in respondent’s district in October 2022.  At that time, petitioner indicated that she and the student lived at a residence in Rockville Centre, New York (the “in-district address”).  According to respondent, petitioner also provided a sworn affidavit stating that she and the student lived rent-free at the in-district address, which belonged to petitioner’s friend.

Thereafter, respondent commenced an investigation regarding petitioner’s and the student’s residency.  As a result thereof, respondent concluded that, while the student resided at the in-district address with petitioner’s friend, petitioner resided at an address in Queens, New York (the “out-of-district address”).  By letter dated December 6, 2022, respondent informed petitioner that, “[i]f you still reside in Queens, that may make [the student] ineligible to attend school in ... the district,” since, under New York State law, “a child’s legal residence is presumed to be the same as the parent’s legal residence.”[1]  By letter dated December 13, 2022, respondent’s superintendent informed petitioner of the district’s determination that the student was not a legal resident of the district and, therefore, was not entitled to attend respondent’s schools.  In the letter, the superintendent asserted that petitioner lived at the out-of-district address and had previously admitted that she retained full custody of the student.  As such, the superintendent concluded that the student’s “legal residency for school purposes remain[ed] with [petitioner] in Queens.”  This appeal ensued.  Petitioner’s request for interim relief was granted on January 6, 2023.

Petitioner contends that she and the student reside within respondent’s district and that respondent incorrectly found that petitioner resided at the out-of-district address.  For relief, petitioner requests a determination that the student is a resident of the district and, therefore, entitled to attend its schools tuition-free.

Respondent argues, among other things, that petitioner has failed to meet her burden of proving that its determination was arbitrary or capricious.  

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). 

By letter dated July 6, 2023, my Office of Counsel directed respondent, pursuant to 8 NYCRR 276.5 of the Commissioner’s regulations, to submit an affidavit or affirmation indicating whether the student had graduated from high school.  By affirmation dated July 12, 2023, respondent’s counsel indicated that the student “did graduate from [respondent’s high school]” on June 23, 2023.  Because the student has graduated, the appeal must be dismissed as moot (Appeal of Walsberg, 57 Ed Dept Rep, Decision No. 17,332; Appeal of S.P., 56 id., Decision No. 16,951; Appeal of L.B. and T.B., 55 id., Decision No. 16,832).

To the extent petitioner argues that the appeal is not moot due to a continuing dispute over tuition costs for the 2022-2023 school year, the Commissioner has historically declined to award tuition in residency appeals (Appeal of X.W., 59 Ed Dept Rep, Decision No. 17,760; Appeal of S.T.V., 57 id., Decision No. 17,371; Appeal of M.S. and M.R.F., 57 id., Decision No. 17,347).  Such relief should be sought in a court of competent jurisdiction (Appeal of Morris, 57 Ed Dept Rep, Decision No. 17,175; Appeal of Clark, 48 id. 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

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




[1] Internal emphases have been omitted.