Appeal of STEPHANIE GARDNER, on behalf of her children, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 18,429

(July 1, 2024)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Spackenkill Union Free School District (“respondent”) that her two children (the “students”) are not district residents.  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).

Here, petitioner’s affidavit of service reflects that the petition was sent by U.S. mail and emailed to respondent’s superintendent.  “[S]ervice by U.S. mail does not constitute valid service of a petition pursuant to Education Law § 310” (Appeal of Y.F., 62 Ed Dept Rep, Decision No. 18,298; Appeal of Musso, et al., 60 id., Decision No. 17,936).  Similarly, email “does not satisfy the personal service requirement of 8 NYCRR 275.8 (a)” (Appeal of Moster and YAFFED, 62 Ed Dept Rep, Decision No. 18,225).  Petitioner did not submit a reply or otherwise respond to this defense.  Therefore, the appeal must be dismissed for lack of personal service.

For the benefit of the parties, I note that, following commencement of this appeal, Family Court, Dutchess County issued an order of custody dated March 15, 2024, awarding “physical custody” of the students to petitioner.  Ordinarily, such an order would be determinative of the student’s physical presence within respondent’s district (Appeal of K.R. and T.R., 63 Ed Dept Rep, Decision No. 18,316; Appeal of Foskey, 56 id., Decision No. 16,933).  However, the order does not indicate where petitioner resides (compare Appeal of D.N., 63 Ed Dept Rep, Decision No. 18,408).  Given the fact that respondent frequently observed petitioner or her vehicle at the out-of-district address, I do not find the court order determinative of petitioner’s residency (compare Appeal of D.N., 63 Ed Dept Rep, Decision No. 18,408 and Appeal of K.R. and T.R., 63 id., Decision No. 18,316).

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

THE APPEAL IS DISMISSED.

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