Appeal of BARBARA J. CROWLEY, on behalf of her children MICHAEL and KRISTIN, from action of the Board of Education of the Bronxville Union Free School District regarding residency.

 

Decision NO. 15,025

 

(February 5, 2004)

 

Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn, LLP, attorneys for respondent, John J. Hughes, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bronxville Union Free School District ("respondent") that she and her children were not district residents during the first semester of the 2001-2002 school year.  The appeal must be dismissed.

Michael and Kristen attended the Bronxville School, within respondent"s school district, during the 2001-2002 school year.  During the fall of 2001, questions arose regarding their residence.  The superintendent held a residency hearing on January 23, 2002.  By decision dated January 25, 2002, the superintendent determined that petitioner and her children were not residents of the district from September 4, 2001 to January 18, 2002 and therefore were not eligible to attend the district"s schools without the payment of tuition.

By invoice dated February 7, 2002, the district billed petitioner for tuition for the first semester of the 2001-2002 school year.  Thereafter, respondent commenced a lawsuit in Westchester County Supreme Court to recover the tuition from petitioner and the children"s father.  By decision and order dated June 16, 2003, the court directed petitioner to pay respondent $15,185 in tuition and costs.  Petitioner commenced this appeal on August 12, 2003.

Petitioner requests that I determine that her children were residents of respondent"s district during the 2001-2002 school year and that they are not required to pay the court-ordered tuition.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Recore, 42 Ed Dept Rep __, Decision No. 14,856; Appeal of Phillips, 40 id. 241, Decision No. 14,471).  Petitioner was informed of the residency determination by letter dated January 25, 2002.  Respondent also sent petitioner a tuition bill on February 7, 2002.  Petitioner served this petition on August 12, 2003, more than 17 months beyond the 30-day period.  Petitioner offers an insufficient reason for the delay.  Therefore, the appeal must be dismissed.

Moreover, the Commissioner has historically declined to award tuition in residency appeals (see, Appeal of Baronti, 42 Ed Dept Rep 140, Decision No. 14,802; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613).   Such relief should be sought in a court of competent jurisdiction.  Here, a court has already rendered a judgment ordering petitioner to pay respondent tuition and costs.  Under the doctrine of resjudicata, issues of fact and law underlying that decision may not be relitigated in this proceeding.

In light of this disposition, I need not address the other procedural issues raised in this appeal.

 

THE APPEAL IS DISMISSED.

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