Decision No. 13,717

(December 23, 1996)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Locust Valley Central School District ("respondent") that her son, James Tomassi, is not a resident of the district. Petitioner seeks the enrollment of her son in respondent's district without the payment of tuition, payment by respondent of the cost of a private tutor and summer instruction at a private school, and the imposition of fines of $6,000 and $3,000,000. The appeal must be sustained in part.

Petitioner states that she and her son reside within respondent's school district at 6 Fifteenth Street, Bayville, New York 11709. Petitioner entered into a lease for that premises on October 27, 1995, covering the period from November 1, 1995 through October 31, 1996. After signing the lease, petitioner became involved in a dispute with her landlord which resulted in eviction proceedings against her. That action resulted in a Court Order dated December 21, 1995 and revised on January 16, 1996, which found that petitioner had no entitlement to possession of the premises in question and directed her eviction upon the issuance of an eviction warrant.

Petitioner and respondent's Assistant Superintendent for Administration, Eric Berger, met on November 27, 1995 to determine whether petitioner's son would be admitted to school in the district. In a November 29, 1995 letter to petitioner, Berger denied petitioner's son admission to school based on her purported unwillingness to provide reasonable evidence in support of her residency claim.

According to Berger, he asked petitioner for two affidavits attesting to her residency, one signed by herself and the other signed by her landlord, and that petitioner advised him that she could not obtain an affidavit from her landlord because she was suing her landlord. Berger states that he told petitioner that in that case, she could provide an affidavit from her attorney attesting to the fact that she would be unable to obtain the landlord's affidavit along with her own affidavit. Berger states that petitioner told him that she did not have to provide an affidavit from her attorney.

Petitioner denies that she was given the opportunity to obtain an affidavit from her attorney. In a November 29, 1995 letter from petitioner to Berger, petitioner states that at their November 27, 1995 meeting she advised Berger that her attorney could complete an affidavit of residency, but that Berger rejected this offer as unsatisfactory. In a November 29, 1995 letter from petitioner's attorney to Berger, petitioner's attorney verified that petitioner could not provide a landlord's affidavit because of the pending legal proceedings, and offered to provide Berger with any additional information needed by respondent to verify petitioner's residence.

Petitioner commenced this appeal on February 1, 1996. On February 14, 1996, I granted the interim relief requested by petitioner, directing respondent to admit petitioner's son to the district's schools tuition-free, pending an ultimate determination of the appeal. Petitioner contends that she and her son have resided at 6 Fifteenth Street, Bayville, New York 11709 within respondent school district since November 9, 1995, and that she intends to permanently reside at that address.

Respondent contends that petitioner has failed to demonstrate an intention to establish residence in the district sufficient to qualify for a free public school education pursuant to Education Law '3202(1). Specifically, respondent claims that petitioner did not evidence an intention to remain permanently in the school district because she failed to pay her landlord rent and security as required in her lease and because she did not oppose eviction proceedings brought against her by her landlord. Respondent also contends that petitioner's claim for monetary relief and her claim for payment of the cost of a tutor and summer instruction at a private school should not be granted because the Commissioner of Education lacks authority to grant such relief and because petitioner has failed to establish a right to a tutor or such summer school instruction.

Education Law '3202(1) provides that a child "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 statute is to limit the obligation of school districts to provide tuition-free education only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Reilly, 35 Ed Dept Rep 305; Appeal of Allen, supra).

For purposes of Education Law '3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577). Residence is based on one's physical presence as an inhabitant within the district combined with an intent to remain in the district (Appeal of Stokes, 32 Ed Dept Rep 93; Appeal of Reifler, 31 id. 235). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Appeal of Mountain, 35 Ed Dept Rep 382; Appeal of Britton, supra; Appeal of Richards, 25 id. 38).

It is clear that petitioner and her son were inhabitants of the district when petitioner's son was barred from school in the district on November 29, 1995. At that time, petitioner had entered into a lease for a residence in the school district and eviction proceedings were being brought against her by her landlord to remove her from that residence. Respondent does not dispute the fact that petitioner and her son were inhabitants of the district at that time but contends that petitioner did not have the requisite intent to remain permanently in the district which is needed to establish residency.

Petitioner's failure to pay rent or security to her landlord and her lack of opposition to eviction proceedings are not in and of themselves determinative of whether petitioner intended to remain permanently in the district. Such facts may show an intent not to remain at a particular premises in the school district but do not conclusively establish petitioner's intention not to reside in the district. Respondent offers no other evidence to support its contention that petitioner did not intend to reside permanently in the school district.

Further, there is no evidence in the record before me that petitioner and her son have established a permanent residence in another school district (See, Appeal of Mountain, supra). Although the record shows that a court ordered petitioner's eviction from 6 Fifteenth Street, Bayville, there is no evidence in the record that an eviction warrant was ever issued or that petitioner was in fact evicted. In any event, even if petitioner were finally evicted, such eviction by itself would not be determinative of whether petitioner's son is eligible to attend school in the district. If the eviction were to result in petitioner's homelessness, she would have had the right to designate respondent as the district of attendance for her son, pursuant to Education Law '3209.

Accordingly, on the record before me, I conclude that petitioner and her son were residents of the district at the time of this appeal. This decision does not preclude respondent from making a future determination on the matter of residency in accordance with the requirements of Education Law '3202, if respondent learns of additional facts which demonstrate that petitioner and her son are no longer residents of the district.

Petitioner requests that I order respondent to pay her a fine in the amount of $6,000 to compensate her for lost wages based on her purported inability to work while her son was not in school. In addition, petitioner requests that I order respondent to pay her son a fine in the amount of $3,000,000 to ensure that the school district will act promptly to correct any problems arising from its alleged negligence in this matter. Petitioner's claims for damages must be dismissed. It is well established that the Commissioner of Education has no authority to award damages (Appeal of Brewer, 35 Ed Dept Rep 196; Appeal of Martin, 32 Ed Dept Rep 381).

Petitioner also requests that I order respondent to pay for summer instruction at a private school and a private tutor for her son. I find no basis in the record that petitioner's son has any legal right or is otherwise entitled to such relief.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent admit James Tomassi to its schools without payment of tuition.

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