Decision No. 12,799

(September 8, 1992)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that she is not a resident of the Sewanhaka Central High School District and its refusal to allow her daughter to continue to attend its schools. The appeal must be sustained.

Petitioner's daughter, Shallie, presently attends Floral Park Memorial High School where she is a junior. Petitioner alleges that her daughter has resided with her in respondent's district for the past four years at 107 Barwick Street, Floral Park, New York at the home of friends, a married couple and their two children. When, in the Fall of 1991, correspondence sent to petitioner at that address was returned by the post office, respondent commenced an inquiry to determine petitioner's residency.

Mr. John Savarese, the Attendance Assistant at Floral Park Memorial High School, met with petitioner at 107 Barwick Street on November 12, 1991 at 4:55 a.m. Mr. Savarese states in his affidavit that he was not permitted entry into the home because Shallie was asleep upstairs. Mr. Savarese then commenced a surveillance of the house and the bus stop. He conducted his surveillance for five days in January 1992 and did not observe Shallie board the bus. He could not state with certainty that Shallie did not leave 107 Barwick by car since he was concentrating on the bus stop. A private investigator conducted surveillance at 107 240th Street, Bellerose Queens, on two days in January 1992 and observed Shallie board a school bus for Floral Park Memorial High School. Respondent initially believed petitioner's residence to be the home in Queens. Subsequent evidence established that petitioner's cousin, Paul Martinez, rents an apartment at that location. Respondent's investigation also revealed that petitioner receives mail at both locations and is not registered to vote in either Nassau or Queens Counties. Respondent's investigators found a phone number for petitioner's daughter in the Nassau Cole Index and a nonpublished number in Queens.

Respondent held a hearing on March 17, 1992. By letter dated March 25, 1992 it notified petitioner of its decision to exclude petitioner's daughter from school effective April 27, 1992. Petitioner commenced this appeal on April 27, 1992. I issued an interim order admitting Shallie to respondent's schools on May 6, 1992.

Petitioner maintains that in lieu of rent she pays the utility bill for the residence at 107 Barwick Street. She further alleges that due to continuing harassment by her former husband, she is occasionally forced to temporarily relocate to the home of extended family members and/or friends outside of respondent's district. She maintains that she has obtained Orders of Protection from Family Court that have not been effective in curtailing the harassment and threats that have continued over the last six years. Petitioner testified at the hearing that she is currently separated from her second husband due to the harassment by petitioner's first husband, Shallie's father. After separating from her second husband, petitioner moved in with the friends in Floral Park. Previously, she and her daughter resided with her second husband in Elmont, New York.

Petitioner submitted affidavits from Mr. and Mrs. Thomas Scires, the family in Floral Park with whom she claims to reside, as well as affidavits from Mr. Martinez and two other friends who state that they have provided petitioner and her daughter with shelter due to her personal problems. Mr. Martinez also submitted a recent phone bill and a print-out from Con Edison showing paid utility bills to establish that he has been solely responsible for the expenses at the Queens apartment since September 1991. At the hearing, petitioner had admitted putting phone and utility service in her name at Mr. Martinez's Queens apartment as a temporary expedient until he established credit.

Respondent has raised an affirmative defense that the appeal is untimely because it was not commenced within thirty days of the hearing officer's decision as required by the Commissioner's regulations at 8 NYCRR 275.16. The hearing officer issued the decision on March 25, 1992 and respondent maintains that the decision was mailed to petitioner that same day. Neither petitioner nor respondent make any reference as to when the decision was received by petitioner. Affording the usual five days for mailing (excluding Sundays and holidays), the date of receipt of the decision would be March 31, 1992. As this appeal was commenced on April 27, 1992, I find the appeal timely.

Education Law '3202(1) provides that a person over five years of age and under twenty-one is entitled to attend public school on a tuition-free basis in the district in which the person resides. Since the burden of proof regarding residency lies with the party alleging a change, the issue is whether respondent has satisfied its burden of establishing that petitioner no longer resides in the district (Appeal of Anthony S., 31 Ed Dept Rep , Decision No. 12769, dated August 5, 1992; Appeal of Gibson, 31 id. 284, 287; Appeal of Bonfante-Ceruti, 31 id. 38, 40;). For purposes of Education Law '3202, residence is established by one's physical presence as an inhabitant within the district, combined with an intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235, 237; Appeal of Bonfante-Ceruti, supra).

Respondent has not submitted sufficient proof to establish that petitioner and her daughter are no longer residents of the district. The hearing officer, in his report, found an arrangement whereby petitioner pays the utility bill for the 107 Barwick residence in lieu of rent "not credible, except to establish paper proof of residence to be used for taking advantage of the school system." The hearing officer found it "incredible" that the Scires would open their house to petitioner and her daughter for the past four years and that other friends and family members would provide shelter for petitioner and Shallie to escape from petitioner's former husband. Aside from those conclusory statements, the hearing officer has not provided adequate factual basis for finding petitioner's circumstances unbelievable.

Petitioner has provided affidavits from her cousin, Mr. Martinez, the Scires with whom she claims to reside, and friends who have provided shelter. I find no basis and respondent has offered no reason for finding these affidavits not credible. Petitioner freely admits her need to temporarily relocate and respondent has not shown that petitioner has established some other residence, whether in Queens or elsewhere. A person does not lose an existing domicile or residence until another residence is established through both intent and action expressing such intent (Appeal of Gibson, supra; Appeal of Kenneth R., 30 Ed Dept Rep 297). The surveillance conducted by respondent is inconclusive when viewed in conjunction with the totality of the evidence in this appeal.

I find the hearing officer's conclusion that petitioner and her daughter are not residents of the district unsupported by the evidence. While I am cognizant of the fact that petitioner provided additional documents as part of this appeal that were not presented to the hearing officer, nevertheless, I find that the hearing officer in viewing the evidence that was presented did not properly recognize the respondent's burden to prove a change in residency.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the determination of the hearing officer dated March 25, 1992 is hereby vacated, and that respondent permit Shallie to continue in attendance on a tuition-free basis pursuant to Education Law '3202(1).

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