Appeal of LEONEL O. BARRIENTOS, on behalf of his son JACOB, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 17,113

(June 28, 2017)

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

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that his son, Jacob, is not a district resident.  The appeal must be dismissed.

Petitioner unsuccessfully appealed an earlier determination by respondent that Jacob was not a district resident and was to be excluded from district schools during the 2015-2016 school year (Appeal of Barrientos, 56 Ed Dept Rep, Decision No. 16,944).  In that decision, the appeal was dismissed for lack of proper service and lack of notice required by 8 NYCRR §275.11; however, the decision stated that petitioner retains the right to reapply for admission on Jacob’s behalf at any time and to present any information for respondent’s consideration.

Although the record is unclear, it appears that Jacob was granted admission to respondent’s schools for the 2016-2017 school year.  According to an affidavit provided by respondent’s Director of Student Services and Central Registration (“director”), in or about October 2016, the district received information that petitioner and the student did not reside at their address of record within the district (“Bay Shore address”) but were reported to reside within the Brentwood Union Free School District (“Brentwood address”).  Subsequently, surveillance was conducted at the Bay Shore and Brentwood addresses on 10 separate mornings in November and December 2016 by the director and the District Security Officer (“security officer”).  The director also averred that he had previously researched records maintained by the New York State Department of Motor Vehicles during the 2015-2016 school year which revealed information on three vehicles that were registered to petitioner. 

Surveillance was conducted at the Bay Shore address on November 3, 4, and 8 by the director, who stated that he “never observed either [p]etitioner or Jacob exit that residence” (emphasis omitted) in the morning on these days and “also never observed any [of the] three ... vehicles previously known to be registered to [p]etitioner located at or within the vicinity of those premises....”  The security officer stated in his affidavit that, with regard to surveillance he conducted at the Bay Shore address on November 9, 10, and 22, he “never observed the student exit the ... residence” (emphasis omitted) and “never observed any of [petitioner’s vehicles] located at or within the vicinity...” in the morning on those days.  The security officer also conducted surveillance at the Brentwood address on four mornings in December 2016 (December 2, 5, 7, and 9) and the security officer attested that he “regularly observed Jacob exit the ... residence in advance of the school day” and leave in one of petitioner’s vehicles on each of the four mornings.

By letter dated December 13, 2016, the director notified petitioner that Jacob was not entitled to attend district schools because petitioner was not a resident of the district and also informed petitioner that Jacob’s last day of attendance would be December 20, 2016. 

On December 19, 2016, a residency hearing was held with petitioner.  According to respondent, during the hearing, “[p]etitioner stated that Jacob stays four ... nights a week with him at [the Bay Shore address] and stays three ... nights a week with his mother ... at [the Brentwood address].”  Respondent also contends that petitioner stated that “he did not prohibit Jacob from staying at the [Brentwood address] as he prefers.”  Respondent also acknowledges that petitioner submitted a landlord affidavit dated December 17, 2016 and his New York State driver’s license, both of which listed the Bay Shore address, and that petitioner further stated, at the hearing, that he did not pay any utilities.  A summary of the residency hearing submitted by respondent showed that residency documents presented by petitioner also included auto registrations and a cell phone bill from October 2016.  In addition, the summary noted that petitioner confirmed that two of the cars previously known to be registered to him were currently registered to him, one of which Jacob drives to and from school each day.  Finally, the summary stated that petitioner claims that his ex-wife solely owns and resides at the Brentwood address.        

By letter dated December 20, 2016, respondent sent a second letter to petitioner upholding the district’s determination to exclude the student from school and extending Jacob’s last day to December 23, 2016.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 1, 2017.

Petitioner asserts that he and his son reside within the district, and that Jacob has resided within the district for seven years (since sixth grade) and intends to continue to reside within the district.  Petitioner also states that Jacob “sees [his] mother on weekends and at times if she is not working.” 

As part of the petition, petitioner submits a landlord affidavit, dated December 17, 2016, indicating that he and Jacob live within the district, for a lease term beginning August 1, 2016 and ending July 1, 2017.  In addition, petitioner submits the following documentation listing the Bay Shore address: (1) a direct deposit notice from the Smithtown Central School District indicating payroll information dated December 16, 2016; (2) an electronic funds transfer notice from a bank dated November 26, 2016; (3) a bank billing statement including a payment due date of December 16, 2016; (4) a billing statement from Macy’s including a payment due date of December 9, 2016; (5) petitioner’s vehicle registration dated April 29, 2016 indicating an expiration date of November 12, 2017; (6) petitioner’s interim driver’s license dated April 29, 2016 indicating an expiration date of June 28, 2016; (7) Jacob’s interim learner’s permit dated April 29, 2016 indicating an expiration date of June 28, 2016; (8) an auto policy payment notification from GEICO for the coverage period of November 11, 2016 through May 11, 2017 and a declarations page which appears to list two of the vehicles identified by respondent as those previously known to have been registered to petitioner during the 2015-2016 school year; (9) a factory warranty notification offer from National Vehicle Headquarters requesting a response by October 13 (no year specified); (10) an offer for a platinum MasterCard from Capital One noting an expiration date of December 28, 2016; and (11) an invoice from Healthfirst Essential Plan for the January 2017 billing period.   

Petitioner requests a determination that the student is a resident of the district and is entitled to attend its schools without the payment of tuition.

Respondent contends that the appeal must be dismissed for lack of proper service.  Respondent further asserts that the petition does not contain the notice required by 8 NYCRR §275.11 and does not set forth a clear and concise statement of petitioner’s claim as required by 8 NYCRR §275.10.  Respondent also alleges that petitioner fails to state a claim upon which relief may be granted, that neither petitioner nor his child can establish that they have permanently resided within respondent’s district during the 2016-2017 school year, and that the district’s decision to exclude petitioner’s child is not arbitrary and capricious.

I will first address the procedural issues.  Initially, I note that respondent argues that the petition must be dismissed because it does not contain a clear and concise statement of petitioner’s claims.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Respondent contends that many of the paragraphs of the petition are “incomplete, unintelligible, contradictory, and thus do not meet the pleading requirements” set forth in the Commissioner’s regulation.  I find that while the petition is not a model of clarity, petitioner, who is not represented by counsel, adequately set forth his claims and demand for relief in the petition. Respondent has not alleged or demonstrated that any prejudice resulted from a lack of clarity in the petition and further, respondent was apparently able to adequately address petitioner's claims in its answer and memorandum of law.  Accordingly, I decline to dismiss the petition on this basis (see Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of a Student with a Disability, 50 id., Decision No. 16,106). 

By letter dated January 12, 2017, my Office of Counsel returned the petition to petitioner for failure to contain the notice required by 8 NYCRR §§275.11 and 276.1, the verification required by 8 NYCRR §§275.5 and 275.6 and an affidavit of personal service in accordance with 8 NYCRR §§275.8 and 275.9.  On January 19, 2017, my Office of Counsel received from petitioner the petition, together with a notice of petition, verification, and affidavit of service. 

Respondent asserts that the petition must 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).  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 (see Appeal of Rodriguez, 56 Ed Dept Rep, Decision No. 16,971). 

Petitioner’s affidavit of personal service states that respondent was served on January 17, 2017 “by delivering to and leaving with” the district clerk, Nadine Summers, the annexed material, but that she “refuse[d] to sign due to advice from [the] school attorney not to sign.”[1]  Respondent denies ever having been served at all, stating that it had no actual knowledge a petition had been filed until it was contacted by my Office of Counsel on January 24, 2017.  Together with its answer, respondent submits an affidavit from Ms. Summers in which she indicates that she is the district clerk for respondent and that she “was never served with the [n]otice of [p]etition and the [v]erified [p]etition in the above-captioned appeal, nor ... with any other pleadings, papers and/or documents ... on January 17, 2017” (emphasis omitted).  Ms. Summers also states that she “also never received any pleadings, papers and/or documents in regard to the above-captioned appeal either prior to, or after ... January 17, 2017” (emphasis omitted).

The affidavit of a process server attesting to delivery of a paper ordinarily constitutes prima facie evidence of proper service (Wells Fargo Bank, N.A. v. Chaplin, 65 AD3d 588; Dunn v. Pallett, 42 AD3d 807, appeal after remand 66 AD3d 1179; Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343; Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Application of Kelty, 49 id. 12, Decision No. 15,946).  Where there is a sworn denial by respondent of receipt of proper service of the petition and notice of petition, however, the affidavit of service is rebutted and jurisdiction must be established by further evidence (Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Application of Kelty, 49 id. 12, Decision No. 15,946; Application of the Bd. of Educ. of the Ardsley Union Free School Dist., 38 id. 221, Decision No. 14,019; see also Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343).  The burden of proving service and the resulting existence of jurisdiction is always on the party asserting it (Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343; Skyline Agency, Inc. v. Coppotelli Inc., 117 AD2d 135; Bernardo v. Barrett, 87 AD2d 832, aff’d 57 NY2d 1006; Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Application of Kelty, 49 id. 12, Decision No. 15,946).

In this case, petitioner has not submitted a reply and has no additional evidence in response to the sworn statement of the district clerk that the petition in this appeal was not delivered to her by the process server.  On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met his burden of proving that proper service was made on respondent (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).  Therefore, because petitioner failed to effect proper service upon respondent, the appeal must be dismissed (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

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

THE APPEAL IS DISMISSED.

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