Decision No. 12,965

(August 2, 1993)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that his son is not a resident of the Sewanhaka Central High School District ("respondent"), and its refusal to admit him to its public schools. The appeal must be sustained.

Petitioner's son attended school in respondent district during the 1992-93 school year pursuant to my interim order issued October 22, 1992. As the result of a prior interim order issued in an earlier appeal by petitioner, his son attended respondent's Elmont Memorial High School for the 1991-92 school year as well. Petitioner's earlier appeal was dismissed ultimately on the ground that he was not a resident of the district (Appeal of Baguidy, 32 Ed Dept Rep 162). Based on the record before me in that appeal, I found that petitioner had neither abandoned his residence in Queens nor established residence at 2244 Leighton Road as he alleged. Since my earlier decision sets forth a complete discussion of the facts and relevant law, I shall not repeat them here (see, Appeal of Baguidy, id.).

Petitioner now claims to reside at 116-09 240th Street, within respondent's district. Accordingly, on September 10, 1992, he submitted to respondent a new application for admission to the schools of the district followed by an affidavit from his landlady who confirmed that petitioner, his wife and son reside at 116-09 240th Street. Petitioner also submitted as evidence of his residence telephone bills and other mail sent to him at his new address. Petitioner was also asked to complete a "renter's affidavit" in which he listed 240th Street as his "local residence" and the Leighton Avenue address as his "permanent residence." The district surveilled that address on only one occasion and found petitioner's family there.

After questioning petitioner's residence once again, respondent convened a hearing on September 25, 1992. Based on the evidence before him, the hearing officer concluded that despite petitioner's new address, he was not a resident of the district. The hearing officer based his decision, in part, on my previous determination in Appeal of Baguidy, id., that petitioner did not reside at 2244 Leighton Road and, in addition, on a finding of insufficient evidence of a new residence on 240th Street. Respondent adopted the hearing officer's findings and notified petitioner on October 6, 1992 that his son would not be admitted to the district's schools. Petitioner commenced this appeal.

Respondent asserts that petitioner's address on 240th Street is temporary, and relies on the "renter's affidavit" completed by petitioner on September 11, 1992. Relying on petitioner's own representation in his affidavit that Leighton Avenue was his permanent residence and my earlier decision that petitioner had previously failed to establish that address as his residence, the hearing officer concluded that petitioner does not reside in the district.

Petitioner bears the burden of establishing his residence in respondent's district. "Residence" for purposes of Education Law '3202(1), means "domicile" and is established by one's physical presence and the intent to remain there permanently (see, Appeal of Reifler, 31 Ed Dept Rep 235, 237; Appeal of Tunstall, 27 id. 144, 146).

Although petitioner's claim to residence is based on new evidence that he abandoned his residence in Queens and established a new residence within the district on 240th Street, respondent, nonetheless, relies almost exclusively on my prior decision.

Unlike the initial case, respondent presents no evidence whatsoever to suggest that petitioner continues to live outside the district. Instead, respondent rests its case on petitioner's representation on the renter's affidavit and at the hearing on September 25, 1992 that he had two addresses in Elmont. In the present appeal, he identifies 116-09 240th Street as his current residence while he, once again, lists as his permanent residence, 2244 Leighton Road. In contrast, in his prior appeal, petitioner admitted living outside the district in Queens, while asserting that he had lived at 2244 Leighton Road sometime between 1989 and 1991 where he intended to return. Based on the evidence presented at the first hearing, including his physical presence and community ties in Queens at that time, I concluded that petitioner neither established a residence on Leighton Road nor abandoned his residence in Queens. Despite my decision, petitioner then filed an application to reopen that appeal and continued to claim Leighton Avenue as his permanent residence. Since his application to reopen was pending at the time he sought to enroll his son in September, his reference in his renter's affidavit to 2244 Leighton Road as his permanent residence was consistent with his continuing declaration of intent to resume permanent residence at that address. In any case, whether petitioner now believes his permanent residence to be Leighton Road or 240th Street is of little legal consequence, since he has established his physical presence at 240th Street which is located in Elmont, and, his intent to remain within the district, whether at 240th Street or Leighton Road was never the issue in question.

In the previous appeal, my decision rested on the fact that petitioner's physical presence was admittedly in Queens, outside the district. Having not established his physical presence within the district, petitioner failed to establish one of the essential elements of residency (see, Appeal of Reifler, supra at 237). In this appeal, however, petitioner has presented facts that establish his presence at 116-09 240th Street within the district. In the absence of evidence refuting the owner's affidavit and other new evidence that petitioner currently resides at 116-09 240th Street, I find that petitioner and his son now reside in respondent's district and that respondent's reliance upon my prior decision is, therefore, unfounded.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent continue to admit petitioner's son to its public schools as a resident of the Sewanhaka Central High School District.

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