Appeal of M.P. and A.S., on behalf of their child, from action of the Board of Education of the City School District of the City of Peekskill regarding residency.

Decision No. 18,659

(December 15, 2025)

Barger & Gaines, attorneys for petitioners, Jennifer M. Swift, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Camille E. Curry, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Peekskill (“respondent”) that their child (the “student”) is not a district resident.  The appeal must be dismissed.

Petitioners purchased a home within respondent’s district (the “in-district address”) in 2018.  Petitioners and the student resided at that location prior to the events described herein.

In 2024, petitioners conducted lead abatement at the in-district address.  While this work was performed, petitioners relocated to an address in Nyack, New York (the “out-of-district address”).  Petitioners indicate that they “extended [their] stay” at the out-of-district address “only as medically necessary to safely transition [the student] back to commuting” to and from the in-district address. 

In or around January 2025, respondent learned that petitioners had advertised the in-district address as a rental property.[1]  Between February and May 2025, an investigator observed petitioner M.P. and the student, on multiple occasions, departing the out-of-district address and driving to the school the student attends.

By letter dated June 23, 2025, respondent’s superintendent informed petitioners that he had determined that the student did not reside within the district.  This appeal ensued.

Petitioners contend that they are temporarily absent from the in-district address.  They suggest that respondent investigated their residency to avoid paying the student’s tuition at a nonpublic school.  They seek, among other relief, a determination that the student is a district resident.

Respondent, relying primarily on its surveillance evidence, contends that the student resides with petitioners at the out-of-district address.  Respondent also offers evidence that the lead abatement work was completed as of November 22, 2024.

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 [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).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts that an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A petitioner must demonstrate substantial progress toward returning to the district or a concrete and realistic plan for doing so (Appeal of Macchia, 51 Ed Dept Rep, Decision No. 16,299; Appeal of Schmitt, 49 id. 271, Decision No. 16,022; Appeal of J.V., 44 id. 421, Decision No. 15,218).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dep t 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 (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

In support of their claim of residency, petitioners submit several documents, including a property deed, financial correspondence, receipts, insurance information, water bills, and voter registration.  They also provide a payment voucher demonstrating that Westchester County reimbursed their relocation costs in connection with the out-of-district address through the end of January 2025.  Finally, petitioners offer the statement of a neighbor, who indicates that he observed their “regular presence” at the in-district address “over [a] 6-year time span.”

This evidence, while generally relevant to petitioners’ residency, does not amount to a concrete plan to return to the in-district address.  Petitioners did not submit any evidence that a transition period was medically necessary to help the student with long transportation times, nor did they state when they intend to return to the district.  Of note, petitioners spoke with respondent’s director of special services in 2025 on multiple occasions but did not mention that they were temporarily residing outside of the district or anticipated challenges in transporting the student to and from school.  Given this, petitioners have failed to meet their burden of proving that they are temporarily residing at the out-of-district address (Appeal of R.P., 64 Ed Dept Rep, Decision No. 18,571; Appeal of Hayes, 64 id., Decision No. 18,482; Appeal of Orena, 62 id., Decision No. 18,168).

To the extent petitioners request enforcement of a settlement agreement between petitioners and respondent resolving a due process complaint filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), that claim must be dismissed for lack of jurisdiction.  Such agreements may only be enforced in state or federal court (8 NYCRR 200.5 [j] [2] [iv]; Appeal of J.W., 65 Ed Dept Rep, Decision No. 18,648).

Although the petition must be dismissed, petitioners may reapply to the district for admission on the student’s behalf if or when they return to the in-district address.  To the extent they are not addressed herein, petitioners’ remaining contentions are without merit.

THE APPEAL IS DISMISSED.

END OF FILE