Appeal of YVETTE PALERMO ORTEGA, on behalf of her son KIRK ANTHONY, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Appeal of YVETTE PALERMO ORTEGA, on behalf of her daughter KIRA ANN, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,654

(August 18, 2014)

Codelia & Socorro, P.C., attorneys for petitioner, Myrna Socorro, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, E. Katherine Hajjar, Esq., of counsel

BERLIN, Acting Commissioner.--In two separate appeals, petitioner challenges the determinations of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her children are not district residents.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioner owns a home on The Circle, a street located within respondent’s district.  In September 2010, petitioner’s children were enrolled in respondent’s schools based on their address on The Circle.  At some point during the 2011-2012 school year, respondent received reports that no one was living at the house on The Circle and that petitioner’s children were being dropped off by car at that location to board the school bus.  In December 2011, respondent’s staff initiated a residency investigation.  By letter dated February 7, 2012, respondent’s Director of Pupil Services notified petitioner of the district’s determination that the house on The Circle was uninhabitable, that petitioner and her children appeared to reside in the Bronx and that her children could no longer attend the district’s schools.  Thereafter, apparently based on petitioner’s assertions that her family was temporarily out of the district and intended to move into The Circle, the children were readmitted to respondent’s schools.  Thereafter, in August 2012, a prior appeal regarding that matter was dismissed as moot (see Appeal of Ortega, 52 Ed Dept Rep, Decision No. 16,393).

Respondent continued to question petitioner’s residency and subsequently initiated further surveillance.  Respondent found that the children continued to be dropped off by car at the house on The Circle to board the school bus.  Respondent also again concluded that the house was uninhabitable.

By letter dated May 6, 2013, respondent’s Director of Pupil Services again informed petitioner that the house on The Circle was not livable, that she had concluded that petitioner resided in the Bronx and, therefore, her children were ineligible to attend district schools.  These appeals ensued.  Petitioner’s requests for interim relief were granted on August 28, 2013.

Petitioner initially acknowledges that she did not timely commence the appeals and asks that I excuse the delay.  Petitioner maintains that she and her family reside in the district at the house on The Circle but that, in October 2012, the house was rendered uninhabitable due to Tropical Storm Sandy.  She claims that her family was forced to live in a Federal Emergency Management Agency (“FEMA”) shelter outside the district and that she does not reside in the Bronx.  Respondent maintains that its residency determination is, in all respects, proper.

Subsequent to the submission of all pleadings in the appeals, petitioner submitted new information alleging that, commencing on October 1, 2013, due to the loss of FEMA funding, she began renting an apartment located on The Boulevard, within respondent’s district. Petitioner maintains that she will continue to rent The Boulevard apartment until such time as she can return to her home on The Circle.

Respondent maintains that there is no evidence that petitioner actually resides at The Boulevard nor any evidence that she intends to reside in the house on The Circle.

I must first address certain procedural matters.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the 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.

With respect to the issue of timeliness, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Respondent’s notice of residency determination is dated May 6, 2013.  Affording the usual five days for mailing, excluding Sundays and holidays, petitioner would normally be required to commence the appeals on or before June 10, 2013.  The appeals were commenced on June 24, 2013.  Petitioner admits that this was “past the 30-day limit” but, as justification for her delay petitioner states that respondent’s notice of residency determination was mailed to an incorrect address and inappropriately handed to her child.  Respondent does not dispute this.  On this record, therefore, I will excuse the delay and decline to dismiss the appeals as untimely.

     However, the appeals must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Based on petitioner’s alleged change in circumstances - that she has since leased an in-district apartment at The Boulevard - petitioner’s residency claim based on the address at The Circle is academic, warranting dismissal of the appeals as moot.

     As noted above, following the submission of all pleadings in these appeals, petitioner submitted new information alleging that she has rented an apartment at The Boulevard.  To the extent petitioner asserts - and respondent disputes - petitioner’s residency at The Boulevard, §100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

In order to provide petitioner a full and fair opportunity to present respondent with information in support of her residency claim at The Boulevard and afford respondent a chance to fully consider such information before rendering a determination, the requirements of §100.2(y) must be satisfied.  While I decline to review new claims regarding the address at the Boulevard, I note that petitioner retains the right to reapply to the district for her children’s admission at any time and to present any new information for respondent’s consideration pursuant to §100.2(y).

     In light of this determination, I need not address the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

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