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Decision No. 18,332

Appeal of R.K. on behalf of his child, from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 18,332

(August 21, 2023)

Harris Beach PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

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

Petitioner enrolled the student in respondent’s schools in August 2021, representing that he and the student resided within the district (the “in-district address”).  On January 27, 2023, the student informed a district employee that he lived with his family in Lancaster, New York.  Respondent thereafter commenced an investigation into the student’s residency.  Based upon the results thereof, the district concluded that petitioner and the student resided at an address located outside of the district (the “out-of-district address”).  This appeal ensued.  Petitioner’s request for interim relief was granted on April 12, 2023.

Petitioner contends that the student resides with him at the in-district address and spends time with his mother at the out-of-district address as they are currently separated.  He seeks a determination that the student is a resident of the district entitled to attend its schools tuition-free.  

Respondent maintains that the appeal must be dismissed for improper service and because its evidence shows that the student resides at the out-of-district address. 

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 affidavit of service merely indicates that the petition was served on a “person” on April 4, 2023.  The district’s Central Registrar submits an affidavit in which she indicates that, on the afternoon of April 4, 2023, she witnessed the process server hand papers to a substitute receptionist, indicating that he had “something to drop off”; that the process server did not describe the papers or their intended recipient; and that neither she nor the receptionist are authorized to accept service on the district’s behalf.  Petitioner did not submit a reply or otherwise respond to this contention.  When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeals of L.G., 63 Ed Dept Rep, Decision No. 18,308; Appeal of M.C., 61 id., Decision No. 18,087; Appeal of Litton, 47 id. 277, Decision No. 15,695).

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