Appeal of J.J. and C.S., on behalf of their child, from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.

Decision No. 18,617

(August 4, 2025)

Tully Rinckey PLLC, attorneys for petitioners, Sivan Zak, Esq., of counsel

Royce Russell, Esq., attorney for respondent

ROSA., Commissioner.--Petitioners challenge the determination of the Board of Education of the City School District of the City of Mount Vernon (“respondent”) that their child (“the student”) is not a district resident.  This appeal must be sustained.

Prior to the events described herein, the student attended respondent’s schools as a district resident.  In September 2024, respondent investigated the student’s residency based upon petitioners’ request for transportation to an apartment located within the district (the “in-district apartment”).  Respondent proceeded to surveil the in-district apartment, petitioner’s home (the “in-district address”) and a location in Brooklyn, New York (the “out-of-district address”).  On October 2 and 8, 2024, respondent observed petitioners and the student exit the out-of-district address; they thereafter drove to the in-district apartment where the student boarded the bus.[1]

In a letter to petitioners dated October 21, 2024, respondent indicated that it had determined that the student resided at the out-of-district address.  The letter stated that the student’s last day in school would be October 31, 2024.[2]  This appeal ensued.  Petitioner’s request for interim relief was granted on December 9, 2024.

Petitioners indicate that the student resides with petitioner J.J. at the in-district address from Monday through Friday.  They assert that the student stays with petitioner C.S. at the out-of-district address on weekends and holidays, but only “rare[ly]” during the school week.  Petitioners seek a determination that the student is a district resident.

Respondent contends that public records and its surveillance evidence establish that petitioners reside at the out-of-district address.

I must initially address two procedural matters.  First, respondent’s October 21, 2024 letter did not provide petitioners with an “opportunity to submit information concerning the child’s right to attend school in the district” prior to the student’s exclusion (8 NYCRR 100.2 [y] [6]).  This error notwithstanding, petitioners have had a full and fair opportunity in this appeal to present evidence of residency and respond to the district’s claims.  As such, I decline to sustain and remand the appeal on procedural grounds (Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; see also Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,145; Appeal of Smythe, 51 id., Decision No. 16,303; Appeal of Butler and Dunham, 50 id., Decision No. 16,103).  However, I admonish respondent to comply with 8 NYCRR 100.2 (y) (6) in the future (Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687).

Second, respondent did not submit an answer.  As such, the factual allegations set forth in the petition are deemed to be true (8 NYCRR 275.11; see Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897; Appeal of Pierre, 47 id. 513, Decision No. 15,768; Appeal of Raines, 45 id. 21, Decision No. 15,246).  Nevertheless, I have accepted respondent’s opposition to petitioners’ request for interim relief into the record, which generally conveys its position (Appeal of Ceriello, 56 Ed Dept Rep, Decision No. 17,094).

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 of tuition.”  The purpose of this provision is to limit a school payment 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 [1991]).  “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 [2004]; 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).

Petitioners have proven, at minimum, that the student’s time is essentially divided between the in- and out-of-district addresses.[3]  Petitioner J.J. has provided an affidavit, driver’s license, voter registration information, car insurance statement and a bank statement establishing that he resides at the in-district address.  Both parents state in affidavits that the student spends more than 50 percent of the school year at the in-district address.

Respondent relies upon the results of its surveillance evidence, which, at most, portrayed the student leaving the out-of-district address on two occasions.  Even if this surveillance accurately reflected the student’s living arrangement, petitioners and/or the student were observed at or near the in-district address on October 30 and 31, 2024.  A 50/50 split between the in- and out-of-district addresses would be consistent with residency within the district, particularly under the essentially divided standard (Appeal of Prescod and Cumberbatch, 60 Ed Dept Rep, Decision No. 17,924 [“the relevant test is essentially divided, not exactly divided”]).[4]

In any event, petitioners have provided a reasonable explanation for their presence at the out-of-district address.  Petitioner J.J. indicates that the student has substantial medical needs that necessitate the supervision of a nurse while he travels to and from school.  He further explains that, on October 2 and 8, 2024, he and the student drove to the out-of-district address to pick up the nurse and petitioner C.C.[5]  The group thereafter traveled to the in-district apartment, where they assisted the student in boarding the bus.  Petitioner J.J. asserts that the in-district apartment, which belongs to the student’s grandparents, was selected as a pick-up location “for convenience in picking up and dropping off the [s]tudent.”[6]  Respondent does not contest these assertions.  As such, I find that petitioners have offered a reasonable, unrebutted explanation for their presence at the out-of-district address (see Appeal of Mirza, 57 Ed Dept Rep, Decision No. 17,128).  

Based on the evidence in the record, I find that respondent unreasonably excluded the student from its district.  To the extent they are not addressed herein, respondent’s remaining arguments are without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.

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