Appeal of MARIO CIAMPA, on behalf of his children KONSTANTINOS and NIKOLAOS, from action of the Board of Education of the Manhasset Union Free School District regarding residency.

Decision No. 16,825

(September 4, 2015)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Manhasset Union Free School District (“respondent”) that his children are not district residents.  The appeal must be dismissed.

In September 2014, petitioner purchased a house in Manhasset, within respondent’s district (“Manhasset address”).  During the 2014-2015 school year, petitioner’s children attended respondent’s district pursuant to a nonresident tuition agreement for future residents of the district.  Petitioner asserts that he and his family have been residing at his children’s grandparents’ house in Douglaston, New York (“Douglaston address”), outside the district and have resided there since approximately November 2014, while his house at the Manhasset address has been under construction.

According to the record, on September 3, 2014, petitioner enrolled his children in respondent’s district pursuant to respondent’s Policy No. 5152 entitled, “Admission of Non-Resident Students” (“policy”).  The policy permits children of future residents to attend the district’s schools in accordance with certain conditions, including an agreement to move into the district by October 15th of that school year and to pay pro-rated tuition for the time that the student was not domiciled in the district but attended as a nonresident.  Pursuant to respondent’s policy, petitioner submitted a signed contract of sale for the house at the Manhasset address and, on September 3, 2014, entered into a written nonresident tuition agreement for future residents (“agreement”) with respondent.  At the time of the purchase of the Manhasset property, petitioner apparently resided in Floral Park.  Pursuant to the agreement, petitioner and his wife agreed to establish residency in respondent’s district by October 15, 2014.

According to respondent, on October 22, 2014, respondent’s deputy superintendent for business and finance (“deputy superintendent”) held a residency meeting with petitioner and his wife to review their residency status.  According to the deputy superintendent, petitioner indicated that they were unable to move into the Manhasset address due to recently discovered hazardous conditions that caused unforeseen delay.  A site visit conducted that same day by the deputy superintendent confirmed that the Manhasset address was vacant.  By letter to the deputy superintendent, dated October 22, 2014, petitioner and his wife confirmed the discussion, described the steps they would be taking to address the repairs, and advised that the repair work would be completed “around the end of December.”  They also stated their intention to occupy the home once the repairs were completed.  By email dated October 23, 2014, the deputy superintendent agreed to extend the residency deadline to the end of December and directed petitioner and his wife to keep the district informed of their progress.

On January 13, 2015, having received no further information from petitioner, the deputy superintendent emailed him to request an update.  By email dated January 14, 2015, petitioner responded that the problems with the Manhasset address were “worse than anticipated” and reconstruction would require permits from the town.  Petitioner advised that he had already retained the services of an architect and contractor and that, once permits were issued, the work would be completed “as expeditiously as possible.”  By emails dated January 16, 2015 and February 12, 2015, the deputy superintendent requested further information and a realistic date of occupancy.  According to the deputy superintendent, petitioner did not respond to those requests.  In mid-March 2015, district staff drove by the property.  The site visit revealed that no construction was in progress, no permits were visible, and the property was still vacant. 

By letter dated March 30, 2015, the deputy superintendent notified petitioner of his initial determination that petitioner and his children were not district residents and that the children would be excluded from schools after April 17, 2015.  Petitioner was provided an opportunity to submit information, no later than 1:00 p.m. on April 17, 2015, regarding his residency in the district.  Petitioner requested a meeting with the deputy superintendent and on April 16, 2015, such meeting was held.  At the meeting, petitioner and his wife acknowledged that the family still resided outside the district.  According to the deputy superintendent, petitioner’s wife stated that they would try to seek a rental property within the district but petitioner expressed concern about the associated costs. 

By letter dated April 23, 2015, the deputy superintendent notified petitioner of her final determination that his children were not eligible to attend the district’s schools because petitioner resided with his children outside the district at the Douglaston address.  The letter further advised that the decision could be appealed to the superintendent within five school days.  On April 24, 2015, petitioner appealed to the superintendent. 

On May 1, 2015, the superintendent held a residency meeting.  According the record, the superintendent granted another extension, until May 21, 2015, for petitioner to demonstrate residency in the district, either by moving into the Manhasset address or renting another residence within the district.

By letter dated May 26, 2015, the superintendent issued his determination that petitioner and his children did not reside in respondent’s district but, instead, resided outside the district at the Douglaston address.  The letter advised petitioner that, therefore, his children would be excluded from attending the district’s schools at the end of the school day on June 12, 2015.  This appeal ensued.  Petitioner’s request for interim relief was granted on June 12, 2015.

In his petition, petitioner states that he and his children reside with his children’s grandparents outside the district but intend to reside at the Manhasset address, which “is undergoing extensive renovation to remediate mold and make other improvements” that will “take time because they require architectural plans and permits in addition to construction time.”  Petitioner seeks a determination that his children are district residents and are entitled to attend respondent’s schools tuition-free.  I note, however, that, although not addressed at all in the petition, petitioner attaches as an exhibit a copy of a lease on an apartment within the district, dated June 8, 2015.  The term of the lease is from July 1, 2015 through June 30, 2016.

Respondent denies that petitioner and his children reside within the district.  Respondent asserts that petitioner failed to meet his burden of demonstrating a clear legal right to the relief requested and the facts upon which he seeks relief.  Respondent maintains that its residency determination was based on credible evidence, complied with the law and district policy, was within its lawful discretion, and was neither arbitrary nor capricious.

I must first address several procedural issues.  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). 

By letter to my Office of Counsel, dated July 29, 2015,[1] respondent’s counsel requested that I consider her “Sur-Reply Affirmation” and an additional affidavit by the deputy superintendent.  According to respondent’s counsel, the Sur-Reply Affirmation and affidavit provide new evidence and information that was not available at the time the district submitted its verified answer.  

According to the deputy superintendent’s affidavit, on or about June 9, 2015, petitioner advised the district’s central registration office that he had signed a rental agreement for an apartment within respondent’s district (“Manhasset apartment”), commencing July 1, 2015.  As a result, on July 16, 2015, the deputy superintendent visited the Manhasset apartment, during which it “appeared that petitioner and his family were in the process of moving into the Manhasset apartment, but had not yet fully moved into the apartment” (emphasis omitted).  Petitioner stated “in words or substance that most of his family’s belongings were still in storage.”  Further, petitioner stated that “no progress” had been made on the Manhasset address and it “might take up to another year” before petitioner’s family could move into that house.  To the extent that the Sur-Reply Affirmation is relevant to the issues originally raised in the pleadings and contains new information that was not available at the time respondent submitted its answer, I have considered it.

By letter dated August 6, 2015, petitioner responded to respondent’s Sur-Reply Affirmation and the additional affidavit.  Petitioner asserts that, while all of his belongings were not yet at the Manhasset apartment at the time of the site visit, “everything we need to live there has been brought to the apartment since that date.”  In his letter, he asserts that he and his family now reside in the Manhasset apartment pending the completion of the renovation on the Manhasset address.  Respondent objects to petitioner’s letter as an improper 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 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).  I note that petitioner did not submit a reply in response to respondent’s answer.  Rather, the August 6, 2015 letter is submitted in response to respondent’s Sur-Reply Affirmation and additional affidavit, which I have considered to a limited extent.  Therefore, I have similarly considered petitioner’s August 6, 2015 letter.

In his verified petition, petitioner is challenging respondent’s determination that his children are not residents of its school district in relation to the Manhasset address that he purchased and intended to move into during the 2014-2015 school year.  The allegations set forth in the petition are limited to these facts.  Moreover, the nonresident tuition agreement the parties entered into was for the 2014-2015 school year which ended shortly after this appeal was initiated.  Subsequently, petitioner’s circumstances changed when he rented an apartment within respondent’s school district for a term commencing on July 1, 2015 through June 30, 2016 and asserted that he and his family now reside in that apartment.  Therefore, petitioner’s challenge to respondent’s residency determination vis-à-vis the Manhasset address is, at this juncture, academic.  I have no basis for determining in this appeal whether petitioner’s domicile is the new apartment, since the petition is devoid of any allegations regarding petitioner’s lease of the apartment, although a copy is attached as an exhibit.  Although respondent submits a Sur-Reply Affirmation and affidavit regarding a subsequent visit to petitioner’s new apartment, there is no indication that petitioner has applied for his children’s admission based upon the new address or that respondent has followed the procedures set forth in §100.2(y) of the Commissioner’s regulations, as amended, effective December 16, 2014.

Consequently, the claims presented by petitioner in this appeal are moot, warranting dismissal.  To the extent that petitioner seeks a determination of his children’s residence for the 2014-2015 school year for purposes of determining any tuition owed, the Commissioner has historically declined to award tuition in residency appeals (Appeal of O.S., 50 Ed Dept Rep, Decision No. 16,201; Appeal of Clark, 48 id. 337, Decision No. 15,876; Appeal of C.S., 47 id. 407 Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of O.S., 50 Ed Dept Rep, Decision No. 16,201; Appeal of Clark, 48 id. 337, Decision No. 15,876; Appeal of C.S., 47 id. 407 Decision No. 15,737).  Therefore, any discussion of the merits of petitioner’s residency claim for the time period at issue would be advisory in nature.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Accordingly, the appeal must be dismissed (see Appeal of Butler and Dunham, 50 Ed Dept Rep, Decision No. 16,103; Appeal of Azatyan, 49 id. 65, Decision No. 15,959).While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on his children’s behalf at any time should circumstances change, and to submit any new information or documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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