Appeal of ANA DIAZ, on behalf of her children LAURA ALMONTE and EMILY TORIBIO, from action of the Board of Education and Superintendent of the Bay Shore Union Free School District regarding residency.

Decision No. 16,734

(April 3, 2015)

The Law Offices of Ira S. Newman, attorneys for petitioner, Samuel L. Drukman, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education and superintendent of the Bay Shore Union Free School District (collectively “respondents”) that her children are not district residents entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.    

The record indicates that petitioner previously lived with her children and her husband in Brentwood, outside respondents’ district (“Brentwood residence”).  According to petitioner, she co-owns the Brentwood residence with a friend.  Petitioner asserts that she and her husband experienced “marital difficulties” and, in or about the summer of 2010, petitioner and her children began living with her sister in her sister’s single-family house located in respondents’ district (“Bay Shore residence”).  At that time, petitioner submitted a landlord affidavit from her sister indicating that the following individuals lived at the Bay Shore residence:  petitioner, her husband and two children; petitioner’s sister and her two children; petitioner’s brother and his wife and child.  Petitioner also submitted a registration affidavit indicating that she and her husband and two children lived with her sister and her two children at the Bay Shore residence.  The record indicates that petitioner’s children attended respondents’ schools during the 2010-2011 school year.

Petitioner enrolled her children in respondents’ schools for the 2011-2012 school year and submitted a second landlord affidavit from her sister.  Although respondents admitted her children into the district’s schools, respondents also initiated an investigation into petitioner’s residency based on a review of the second landlord affidavit.  In November 2011, respondents’ Director of Student Services and Central Registration (“director”) commenced surveillance of the Bay Shore address.  The record indicates that, during the months of November and December, the director observed the Bay Shore address and the assigned bus stop for one of petitioner’s daughters (Laura Almonte) on ten weekday mornings between 8:45 a.m. and 9:15 a.m. (the record indicates that the pick-up time for that bus stop was 8:56 a.m.).  In an affidavit, the director avers that neither petitioner nor her daughter, Laura Almonte, was observed during the morning surveillance.  The director also observed the Bay Shore address on six weekday evenings between December 19 and December 30 between the hours of 7:00 p.m. and 8:30 p.m.  The director avers that he did not observe petitioner, her children, her vehicle or her husband’s vehicle at the Bay Shore address during the evening surveillance.  The record indicates that no surveillance was conducted at the Brentwood address.

By letter dated January 20, 2012, the director informed petitioner that her children were not district residents and would be excluded from school after January 27.  According to the director’s letter, the basis for the determination was that petitioner was “neither a resident of our school district, nor [was she] presently considered an exception to the residency regulations.”  On January 24, petitioner and her sister attended a residency conference with the assistant superintendent and other district staff.  In his affidavit, the director avers that, at this conference, petitioner admitted that she often stays at the Brentwood address.

By letter dated January 25, respondents’ Assistant Superintendent for Administration (“assistant superintendent”) informed petitioner that her children were not entitled to attend its schools “due to insufficient and credible [sic] evidence you are a current resident.”  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner claims that, although she owns the Brentwood address jointly with a friend, she no longer resides there and that the residence is currently occupied by relatives who pay monthly rent to her.  She further asserts that she placed the Brentwood address up for sale, that she lives at the Bay Shore address, and that she and her husband “are actively looking to purchase a home” in Bay Shore.  In support of her claims, petitioner submits photographs purporting to be the rooms she and her children occupy at her sister’s house.  She further claims in her reply that she and her husband have reconciled, that he has agreed to move into the Bay Shore residence, and that a room at that address has been converted into a master bedroom for them.  She also submits copies of a credit card bill, her 2011 tax return and her driver’s license, issued in July 2010, listing the Bay Shore address.

Respondents argue that the decision that petitioner and her children are not district residents was not arbitrary or capricious and that the appeal must be dismissed.  Respondents also object to the timeliness of the reply submitted by petitioner.

With respect to the procedural matter, I disagree with respondents’ argument that petitioner’s reply must be disregarded as untimely because it was served prior to service of respondents’ verified answer.  While it is true, as respondent notes, that a reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]), I note that, in his reply affirmation, petitioner’s attorney explains that it is submitted in response to respondents’ papers in opposition to petitioner’s request for interim relief.    Thereafter, subsequent to respondents’ submission of an answer, petitioner stated that her reply papers were also submitted in response thereto.  As such, I will consider them.  However, while I may consider additional pleadings and papers in an appeal commenced pursuant to Education Law §310, petitioner may not buttress allegations in the petition or belatedly add assertions that should have been in the petition (Appeal of K.L., 53 Ed Dept Rep, Decision No. 16,627). Therefore, while I have reviewed petitioner’s reply, I have not considered those portions containing claims or documentation that should have been included in the petition.

I note that petitioner’s reply includes allegations and exhibits responding to respondents’ surveillance evidence, which was submitted as part of respondents’ papers in opposition to petitioner’s request for interim relief.  I will consider that information as responsive to new material submitted by respondents.  There is no indication in the record that petitioner was presented with or aware of the surveillance evidence prior to receipt of respondents’ opposition papers. Indeed, the letters to petitioner from the director and the assistant superintendent do not mention it, only stating, as the basis for the residency determination, that petitioner was “neither a resident of our school district, nor [was she] presently considered an exception to the residency regulations” and that the determination was “due to insufficient and credible [sic] evidence you are a current resident.”  There is also no mention in the record that respondents revealed the surveillance evidence to petitioner at the January 24 residency conference.  Accordingly, I have considered petitioner’s explanatory information in her reply papers regarding the surveillance (see e.g., Appeal of J.A., 54 Ed Dept Rep, Decision No. 16,655).

Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). 

As described above, petitioner submits documentation listing the Bay Shore residence as her address, including a credit card bill, her 2011 tax return, and her driver’s license, which was issued in 2010.  Together with her verified reply, she also submits affidavits from herself as well as her sister and brother.  In her own affidavit, petitioner explains that she and her children were not observed at the Bay Shore address during the surveillance period for a variety of reasons, including that she works early in the morning and leaves the house at 6:30 a.m. with her daughters, who she takes to her brother’s home.  Petitioner also states that, while her brother drives Laura to school, Emily takes the school bus from his home to respondents’ high school.  Petitioner further explains that respondents’ evening surveillance coincided with the district’s winter recess, the Christmas holidays and the holiday shopping season and that, “on any one of the evenings [the Bay Shore address was observed, she] may have been taking [herself] or [her] daughters to church pre-confirmation class, to dance class, or to the mall.”  I note, however, that while some surveillance conducted during the week of December 19-23 would likely have been during the district’s winter recess, petitioner has not satisfactorily explained the bulk of the surveillance, including the five surveillance days in November.

To support their claim that petitioner is not a district resident, respondents argue that petitioner still owns the Brentwood home, receives utility bills in her name and admits to staying overnight there.  Respondents argue that petitioner does not submit any evidence indicating that she has a lease or pays rent at the Bay Shore address.  Respondents also rely on the surveillance evidence, during which neither petitioner nor her children were observed at the Bay Shore address or at the school bus stop for that address.  Respondents contend that, despite petitioner’s claims that Emily takes the bus to school from petitioner’s brother’s home, the district has never received a transportation request for either of petitioner’s daughters to be transported to school from that bus stop.  Respondents have also submitted evidence that petitioner’s and her husband’s vehicles are registered at the Brentwood address and note that neither vehicle was observed at the Bay Shore address during the surveillance period.

Although this record is not unequivocal, and respondents’ surveillance is not overwhelming, I find that petitioner has failed to carry her burden of proof.  While petitioner offers several explanations regarding her residency and family situation, she does not provide any documentary evidence to support such claims.  For example, petitioner asserts that she has placed the Brentwood residence up for sale, that she currently rents the Brentwood residence to relatives, and that she pays rent to her sister at the Bay Shore address, yet she presents no lease or other documentation to substantiate these claims.  Petitioner also fails to explain why, while her driver’s license lists the Bay Shore address, her vehicle registration lists the Brentwood address.  In addition, although she claims that she is renting the Brentwood residence and that it is “presently occupied” by her relatives, petitioner also admitted that she has stayed overnight there with her husband.  In this regard, I note that a residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

On this record, which includes several inconsistencies, coupled with a lack of documentary evidence to substantiate petitioner’s conclusory claims, I find that petitioner has failed to carry her burden of proof and cannot conclude that respondents’ determination was arbitrary and capricious.  Therefore, I decline to substitute my judgment for that of respondents.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondents’ consideration.

As a final matter, although not raised by petitioner, I must comment on respondents’ failure to comply completely with §100.2(y) of the Commissioner’s regulations.  Section 100.2(y) sets forth the procedures a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that a board or its designee provide written notice of the determination that a child is not a district resident, including the basis for such determination (8 NYCRR §100.2[y]; Appeal of Zayas, 53 Ed Dept Rep, Decision No. 16,546).  As noted above, the district’s final determination letter contained only a general statement that the decision was “due to insufficient and credible (sic) evidence you are a current resident.”  Such statement is inadequate and does not provide an individual sufficient information to initiate a meaning challenge (see Appeal of Zayas, 53 Ed Dept Rep, Decision No. 16,546; Appeal of Ogden, 37 id. 141, Decision No. 13,826).  Although my acceptance of petitioner’s reply to respondents’ papers in opposition to petitioner’s request interim relief and answer herein – which more specifically set forth the basis for respondents’ residency determination – affords petitioner the opportunity for meaningful challenge in this instance, respondents are reminded of their obligation to ensure full compliance with the requirements of §100.2(y).    

THE APPEAL IS DISMISSED.

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