Appeal of N.S., on behalf of her son S.S., from action of the Board of Education of the Sag Harbor Union Free School District regarding residency.

Decision No. 16,070

(May 26, 2010)

Guercio & Guercio, LLP, attorneys for respondent, Jeffrey Mongelli, Esq., of counsel

Petitioner appeals the determination of the Board of Education of the Sag Harbor Union Free School District (“respondent”) that her son, S.S., is not a district resident.  The appeal must be dismissed.

In September 2009, petitioner enrolled S.S. in respondent’s district.  The prior year he attended the Child Development Center of the Hamptons Charter School.  Petitioner allegedly indicated to school representatives that she and her husband were going through a trial separation and that while her husband was residing in the East Hampton Union Free School District, she and her son moved to an apartment in respondent’s district.  Respondent initiated surveillance of the alleged in district residence as well as her husband’s East Hampton residence. Respondent’s representatives met with petitioner on October 21 and 27, 2009 to discuss S.S.’s legal residency.  By letter dated October 21, 2009 respondent’s superintendent informed petitioner of his determination that S.S. was not a district resident and would be excluded from respondent’s schools after October 30, 2009.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 6, 2009.

I must first address a procedural matter.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  Respondent sought permission to submit additional materials for consideration.  Petitioner did not object.  Accordingly, I have considered the additional materials.

Petitioner contends that she and her son reside in respondent’s district.  Petitioner also indicates that S.S. has overnight visits with his brother, sister and aunt outside of respondent’s district when she is working late.  In support of her petition, petitioner submits a one-year lease for an apartment within respondent’s district and one utility bill.    

Respondent contends that petitioner has failed to demonstrate that S.S. is a resident of respondent’s district.  Respondent further argues that its determination was not arbitrary or capricious and that the petition should be dismissed in its entirety.    

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Based on the record before me, I cannot conclude that respondent’s determination was arbitrary or capricious.  Respondent’s representative conducted surveillance at both the alleged in-district residence and the East Hampton residence.  The surveillance evidence demonstrates that petitioner’s car was observed parked at the East Hampton residence both in the early morning and evening hours on several occasions, and not at the alleged in-district residence.  In addition, minutes from meetings held with petitioner indicate that she did not dispute the surveillance evidence and that she claimed that she spent a lot of time at the East Hampton residence because her elderly mother resides there.  Apparently, petitioner’s other son also resides at the East Hampton residence and attends school in the East Hampton Union Free School District.  During a meeting, petitioner admitted that she had first been in contact with representatives of the East Hampton Union Free School District but did not want S.S. to go back to that district and that she was searching for a school to send him to. 

On the record before me, petitioner has failed to prove that she is a resident of respondent’s district or that respondent’s determination was arbitrary or capricious.  Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE