Appeal of ROXANNE SALERNO, on behalf of her children JUSTIN, SHAUN, NICK and JOE, from action of the Board of Education of the Harborfields Central School District regarding residency.

Decision No. 15,272

(August 5, 2005)

Gerald Gardner Wright, P.C., attorneys for petitioner, Gerald G. Wright, Esq., of counsel

Ingerman, Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Harborfields Central School District ("respondent") that her children are not district residents. The appeal must be sustained.

Petitioner's children are currently enrolled in respondent's schools. Respondent suspected petitioner and her children did not reside in the district and began a residency investigation.

Respondent's investigation revealed that in January 2004, petitioner and the father of their children purchased a home together in Huntington, outside the district. In December 2004, an investigator conducted four surveillances during which petitioner was observed leaving the Huntington address in the morning with her children. On all four occasions, petitioner drove one of her children to the alleged Harborfields residence where he would subsequently catch the school bus. Petitioner then returned to the Huntington address and subsequently drove her other children to their respective schools within respondent's district.

By letter dated January 5, 2005, respondent's director of pupil personnel services and residency officer ("residency officer") advised petitioner that the district had evidence that she and her children did not reside within the district and that her children would be excluded from attendance as of January 28, 2005. Petitioner objected and respondent permitted the children to remain in school pending additional investigation.

In February 2005, an investigator conducted two additional surveillances of the Huntington address. On both occasions, petitioner drove one of her children to the alleged Harborfields residence where he would subsequently catch the school bus. Petitioner then returned to the Huntington address and subsequently drove her other children to their respective schools within respondent's district.

By letter dated March 10, 2005, the residency officer advised petitioner that she determined that petitioner and her children were not district residents and that her children would be excluded from school as of March 23, 2005. This appeal ensued. Petitioner's request for interim relief was granted on April 18, 2005.

Petitioner claims that she and her children are district residents. To support her claim, petitioner submits an affidavit from her alleged landlord, who is also her children's grandmother, stating that petitioner leases the upstairs apartment and that petitioner and her children have lived there for over two years. Petitioner also submits several letters from neighbors who state that petitioner and her children reside at the Harborfields address. In addition, petitioner submits certain documentary evidence that reflect the Harborfields address, including a letter from her employer, a copy of her driver's license issued in November 2004, and bank statements for March 2005. Petitioner claims that her children's father resides at the Huntington address and that the children visit with him on a regular basis, including occasional overnight visits and that they share the responsibility of caring for their children. She asserts that respondent's surveillance is not inconsistent with her claim that her children spend time with their father outside the district and that they share an informal custody arrangement. She further argues that respondent's investigation is deficient because no surveillance was conducted at her alleged in-district residence.

Respondent alleges that the surveillance results and the fact that petitioner and her children's father own the home in Huntington demonstrate that petitioner and her children reside outside the district.

Preliminarily, I will address the parties' procedural claims. Respondent submitted a late answer to the petition. Respondent served its answer on May 10, 2005, 12 days late (8 NYCRR �275.13). I note, however, that respondent's answer is substantially similar to respondent's affidavit in opposition to petitioner's request for interim relief, which was submitted in a timely manner. Accordingly, in the absence of any prejudice to petitioner, I have considered respondent's answer.

Respondent submitted a general objection to petitioner's reply. 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). I will accept petitioner's reply because I find that it is responsive to new material or affirmative defenses raised by respondent in its answer.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

Where a child's parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Williams, 42 id. 8, Decision No. 14,756).

Based on the record before me, I find insufficient evidence to support respondent's determination that petitioner and her children are not district residents. The surveillance, conducted only at the Huntington address, yielded inconclusive and unpersuasive results in view of petitioner's statement that her children spend time with their father, including overnight visits. Moreover, respondent's investigator did not conduct surveillance at the Harborfields address despite petitioner's claim that she resides there, statements from four neighbors in support of her claim and a sworn statement from her landlord that she rents an apartment at the Harborfields address and has lived there with her children for over two years. Given this evidence, respondent's limited surveillance of the Huntington address does not establish that petitioner and her children reside there.

On the record before me, I find that respondent's determination that petitioner and her children are not district residents is based upon insufficient evidence and is therefore arbitrary and capricious (Appeal of Smith, 44 Ed Dept Rep 66, Decision No. 15,100; Appeal of Staton, 40 id. 134, Decision No. 14,440).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit petitioner's children to attend school in the Harborfields Central School District without the payment of tuition.

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