Appeal of MELISSA M. GENERAL, on behalf of her son NECATI EREN CILVEZ, from action of the Board of Education of the West Irondequoit Central School District regarding residency.

 

Decision No. 14,948

 

(August 29, 2003)

 

Harris Beach, LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the West Irondequoit Central School District ("respondent") that her son, Necati Eren Cilvez ("Eren"), is not a resident.  The appeal must be dismissed.

Petitioner registered Eren to attend respondent"s school for the 2002-2003 school year listing an address on Greenside Lane, within respondent"s district.  By letters dated October 24 and 29, 2002, respondent"s director of standards support ("director") questioned Eren"s residency and asked petitioner to contact her.  By letter dated November 5, 2002, petitioner informed the director that she and Eren reside on Greenside Lane with her in-laws.  Petitioner also stated that she works two jobs, evenings and nights, and that Eren spends 70% of his time with her mother.  She also mentioned that she works three weekends each month.

 The director then hired a private investigator who conducted surveillance between December 3 and December 16, 2002.  The investigator witnessed petitioner drive Eren to school on two mornings from an address on Empire Boulevard, outside respondent"s district.  On one occasion, the investigator witnessed an unidentified man drop Eren off at school and then drive back to the Empire Boulevard residence.  The investigator also saw the school bus drop Eren off at Greenside Lane on two occasions.

The investigator further discovered that petitioner had registered two cars in her name.  One registration listed the out-of-district Empire Boulevard address.  The other registration listed an address on Rustic Street.  During the surveillance, the investigator never witnessed either of the vehicles registered to petitioner at the Greenside Lane residence.  Based on his findings, the investigator concluded that petitioner resided at Empire Boulevard, outside respondent"s district. 

By letter dated January 9, 2003, the director notified petitioner that she was about to determine that Eren was not a district resident, and therefore, not entitled to attend respondent"s schools. The letter also informed petitioner that she could provide any additional information to the director by January 17, 2003.  This letter was sent to petitioner"s Greenside Lane address by registered mail but could not be delivered.  A copy was hand-delivered to petitioner on January 17, 2003.

By letter dated January 22, 2003 and addressed to petitioner at the Empire Boulevard address, the director notified petitioner that Eren was not a resident of the district and that he would be excluded from respondent"s schools as of January 31, 2003.  This appeal ensued.  Petitioner"s request for interim relief was granted on February 11, 2003.

Petitioner asserts that she and Eren live on Greenside Lane within respondent"s district and admits that she occasionally visits her fianc" at Empire Boulevard.  The record includes conflicting statements from the fianc"s landlord as to whether petitioner resides on Empire Boulevard. 

  Petitioner states that she works two jobs and her mother and mother-in-law are Eren"s primary caregivers after school. As proof of her residency, she submits a notarized statement, dated January 27, 2003, signed by her in-laws stating that she and Eren live with them and that she pays them $375 in rent.  She also submits a handwritten statement from her in-laws stating that she lives with them but pays them a different amount of rent.  In addition, petitioner submits a credit card statement and a check payable to her listing the Greenside Lane address.  She also submits a copy of her driver"s license with a handwritten change of address to Greenside Lane, a letter from her credit union and an envelope addressed to her at the Greenside Lane address.  Finally, petitioner submits a custodial affidavit from Eren"s father, who lives in Turkey, stating that petitioner has custody and control of Eren.

Respondent maintains that petitioner and Eren do not reside at Greenside Lane but instead reside on Empire Boulevard, outside of respondent"s district.  To demonstrate petitioner resides outside the district, respondent relies on the surveillance report concluding that petitioner and Eren live at Empire Boulevard.  Respondent also asserts that the envelopes addressed to Greenside Lane are not evidence that petitioner resides there and are contrary to the surveillance report.

At the outset, I note that petitioner"s reply contains new allegations not set forth in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Crosier, 42 Ed Dept Rep ___, Decision No. 14,835; Appeal of a Student with a Disability and His Sister, 42 id. __, Decision No. 14,821). Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Likewise, I have not considered petitioner"s belated submission of a statement of facts. 

Education Law "3202(1) provides in pertinent part:

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 statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Burnett, 42 Ed Dept Rep ___, Decision No. 14,825; Appeal of J.M., 42 id. __, Decision No. 14,783).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Washington, 42 Ed Dept Rep ___, Decision No. 14,820; Appeal of Gimenez, 42 id. __, Decision No. 14,812).

A residency determination will not be overturned unless it is arbitrary and capricious (Appeal of Newby, 42 Ed Dept Rep ___, Decision No. 14,790; Appeal of Boyd, 41 id. 266, Decision No. 14,682).  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Vazquez, 42 Ed Dept Rep ___, Decision No. 14,841; Appeal of Crosier, supra).

Although the record presents a close case, I find that petitioner has failed to meet her burden.  The various pieces of mail she submits are not persuasive evidence that she actually resides on Greenside Lane.  She submits two differing accounts from her in-laws regarding the amount of rent she allegedly pays at Greenside Lane, undermining her credibility.  Neither of petitioner"s automobile registrations lists the Greenside Lane address.  In fact, one registration lists the Empire Boulevard address, where respondent contends she actually resides.  Petitioner has offered no explanation for this registration.  Moreover, the landlord at Empire Boulevard has made conflicting statements about petitioner"s residence there.

I acknowledge that respondent"s evidence is not overwhelming.  However, its surveillance does show that petitioner took Eren to school from the Empire Boulevard address on two occasions and that an unidentified individual dropped Eren off at school one day and then drove to Empire Boulevard.

I note that respondent erroneously states in its answer that Eren was not observed at Greenside Lane.  However, the investigator"s report shows that Eren got off the school bus at Greenside Lane on two occasions.  This is consistent with petitioner"s statement that her mother-in-law provides child care after school but does not necessarily establish Eren"s residence there.

Petitioner also states that respondent"s director declined to let her read the surveillance report and that she therefore could not explain that she was staying with her fianc" at Empire Boulevard and using his car while her car was repaired.  However, it appears respondent"s director gave her ample opportunity to explain the circumstances surrounding her residency.  Therefore, based on the record before me, I find that petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that Eren is not a district resident.  Accordingly, respondent"s determination will not be set aside.

 

THE APPEAL IS DISMISSED.

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