Appeal of JO-ANNE PEPPACENO, on behalf of her son ANTHONY MUSCARELLA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,807

(August 5, 2015)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her son, Anthony, is not a district resident.  The appeal must be dismissed.

Petitioner asserts that she lives with her son, Anthony, at an address within respondent’s district (“in-district address”).  On October 14, 2014, petitioner made a request for enrollment in respondent’s schools on Anthony’s behalf. [1]

By letter dated October 17, 2014, respondent’s administrative assistant to the superintendent (“administrative assistant”) advised petitioner of its determination that Anthony was not a resident of respondent’s district.  The stated basis for the determination was, “Living Arrangements Established for the Sole Purpose of Attending District Schools.”  This appeal ensued.  Petitioner’s request for interim relief was denied on November 20, 2014.

Petitioner asserts that she resides with her son in the district at the in-district address.  Petitioner requests a determination that Anthony is a resident of respondent’s district and is entitled to attend its schools on a tuition-free basis.

Respondent contends that the petition must be dismissed for improper service.  Respondent further contends that its determination is rational and supported by the record and, therefore, was not arbitrary, capricious or unreasonable.[2]

As an initial matter, I note that the appeal must be dismissed for failure to exhaust administrative remedies.  As a prerequisite to appeal pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (see Appeal of Moultrie, 33 Ed Dept Rep 89, Decision No. 12,987).  Section 100.2(y) of the Commissioner’s regulations provides that:

[t]he board of education or its designee shall determine whether a child is entitled to attend the schools of the district.  Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district.

The district’s October 17, 2014 letter specifically advised petitioner that, “[u]nder Board Policy and Administrative Regulation 5118,” petitioner could appeal the determination to the district’s administrative review officer, “within ten working days of receipt of [the October 17, 2014 determination]” and that petitioner may appeal the administrative review officer’s “final determination” to the Commissioner within 30 days of that determination.   In light of §100.2(y), petitioner was required to avail herself of these procedures (see Appeal of Moultrie, 33 Ed Dept Rep 89, Decision No. 12,987).  Therefore, the appeal must be dismissed for failure to exhaust administrative remedies. 

The appeal must also be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of personal service indicates that the petition was served “on behalf of Anthony Muscarella by delivering to and leaving with said Secutary [sic] of Admissions” on October 31, 2014 at 77 Landau Avenue, Floral Park, New York.  Respondent denies that service was made upon any person authorized to accept service (see 8 §NYCRR 275.8[a]) and submits an affidavit from respondent’s assistant superintendent for curriculum and instruction (“assistant superintendent”) which states that she has not been designated to accept service of process.  In essence, the assistant superintendent asserts that, on Friday, October 31, 2014, after the close of business hours, she was handed papers by an unidentified adolescent outside of the administrative offices and asked to give them to Mr. Raulli.  She indicates that she was not made aware of the substance of the documents or that they were being presented for legal service of process.  An assistant superintendent for curriculum and instruction is not one of the individuals authorized by §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be properly effected, nor is a secretary of admissions authorized to accept service to the extent that petitioner’s affidavit of service indicates such person was served.  Indeed, respondent denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]) and submits an affidavit from the assistant superintendent stating that she is not authorized to accept service.  Petitioner submits no reply to respondent’s claim of defective service.

Additionally, §275.9 of the Commissioner’s regulations requires that the affidavit of service be in substantially the form set forth in that section and that it indicate the name and official character of the person upon whom service was made.  The affidavit of service submitted by petitioner does not specify the time that service was made or set forth facts showing that the service was made in an authorized manner.  The affidavit also does not state the name of the individual served, nor does it contain a description of the person to whom it was delivered.  Given the above, the affidavit of service submitted by petitioner, itself, is defective and does not establish that service was properly effected upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Consequently, because service is defective the appeal must be dismissed (Appeal of Khan, 51 Ed Dept Rep, Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

Even if the appeal were not dismissed on procedural grounds, it would nevertheless be dismissed on 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).

On the record before me, I cannot find that petitioner has met her burden of proof.  The petition consists of only conclusory allegations regarding petitioner and Anthony’s current living arrangements.  Petitioner has produced no documentary evidence, such as a driver’s license, voter registration or bills bearing the in-district address that would indicate that she actually resides at that address.

Moreover, in support of her October 14, 2014 request, petitioner’s submission included a registration form, a Renter’s/Non-Owner’s Affidavit executed by petitioner and an Owner’s Affidavit executed by the property owner, among other documents.  As respondent notes, petitioner’s submission contains information inconsistent with statements previously made to district officials as well as statements made in the separate, currently pending appeal by Anthony’s godmother.  Indeed, petitioner previously indicated in the September 3, 2014 application for enrollment that she resided outside the district at an Elmont address, but that Anthony resided with his godmother at the in-district address.  However, petitioner’s submission in support of her October 14, 2014 request states that she resides with her son at the in-district address and lists an address in Shirley as the previous address for Anthony.  Further, documents contained in petitioner’s submission include contradictory statements by both petitioner and the homeowner, Susan Murillo, as to those individuals living at the in-district residence.  Therefore, on this record, petitioner has not met her burden of establishing that she resides at the in-district address.  Further, I find that petitioner has not established that respondent’s determination was arbitrary or capricious (see e.g. Appeal of Franklin-Boyd and Graham, 45 Ed Dept Rep 33, Decision No. 15,251).

Although the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on her son’s behalf at any time, and may present for respondent’s consideration any new information bearing on the question of residence.  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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