UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

At this point, I now realized that there would certainly be a hearing that would deal with two issues - the employer's many applications to reopen and whether the claimant was engaged in misconduct. But I knew I also had to concentrate on the former issue - the right to reopen - and I needed to ascertain what documents were filed and when, how the service representatives were changed, their reasons for defaulting, etc. and so a new thorough review of the file began.

ON FORECLOSURES

No. 616 April 2011

"RULE-MAKING POWER OF OFFICE OF COURT ADMINISTRATION IS CONTESTED

OCA’s Recently Adopted “Affirmation” Rule Held Invalid

On October 20, 2010, Chief Judge Lippman announced the promulgation of the “affirmation” rule applicable in actions to foreclose mortgages on residential properties. The rule requires that the plaintiff’s papers include an affirmation by the plaintiff’s lawyer attesting to the papers’ integrity. There have since been several cases on the rule. One of them, Citibank, N.A. v. Murillo, 30 Misc.3d 934, 915 N.Y.S.2d 461 (Sup.Ct., Kings County), shows what many would consider a draconian consequence for violating the rule: a dismissal of the action “with prejudice”. (With prejudice?)

That case came down on January 7, 2011. Even more recently, on Feb. 28, 2011, comes LaSalle Bank v. Pace, 2011 WL 723555 (Whelan, J.), from the supreme court in Suffolk County, not only refusing to apply the affirmation rule, but holding that its very promulgation is beyond the powers of its promulgator: the Office of Court Administration, i.e., the chief judge and his appointee, the chief administrative judge.

In LaSalle, the mortgagee (plaintiff P) moved for summary judgment. The mortgagor (defendant D) resisted it, relying on the ground that the motion did not include the required ­affirmation. The court held the reliance misplaced. It then reviewed D’s defenses and counterclaims on the merits, found them baseless, granted P’s motion for judgment, and appointed a referee to conduct the foreclosure.

After considering at length the constitutional and statutory provisions relating to court administration, the court in LaSalle concluded that

Since [the] rule making authority cannot significantly affect the legal relationship between litigating parties, the imposition of additional matters [like the affirmation requirement involved here] that impair statutory remedies or enlarge or abridge rights conferred by statute are not the proper subjects of rules promulgated by court administrators.

As we see it, the issue boils down to whether this affirmation rule can fairly be considered an “administrative” matter. The court in LaSalle thinks not; the Office of Court Administration obviously thinks otherwise.

The court says the effect of the affirmation rule is to “impair the statutory remedy of foreclosure”, seeing evidence of this “in the recent, vast reduction in case filings and the resounding halt in the prosecution of foreclosure actions pending in this court that immediately followed” adoption of the rule. (Of course the “halt” is only temporary, pending correction in each case through belated submission of a lawyer’s affirmation.)

Incessant complaints by foreclosure defendants and their representatives about the condition of the proof offered in behalf of foreclosing mortgagees is what led to the rule. The mortgage realm has been the scene in recent years of numerous assignments, and with the economic turndown that made it impossible for many homeowners to pay their mortgages, foreclosures piled up and the offices of the foreclosure attorneys, whether independent or in-house, often couldn’t, or in any event didn’t, submit the proper paperwork. There was often evidence of attestations of ownership (of the mortgage) made by those without the requisite knowledge, and sometimes even the suggestion of perjury as those without knowledge swore to things they didn’t know.

The rule was designed to relieve this chaotic scene by securing in each case the affirmation of a lawyer who, before affirming, would have to go through the papers and make sure things were in order, including, especially, checking out the ownership links that connected the foreclosing plaintiff with the original mortgagee.

The immediate question here is whether, considering the circumstances, the requirement of the affirmation is a reasonable exercise of administrative power in the operation of the courts. The LaSalle case says it’s not; that it’s an impermissible exercise of a legislative power. Those on the other side say in response that the power to make rules is itself a species of legislative power, and that if either the constitution or the legislature, or a combination of them, confers the rule-making power on the courts’ administrators, they are in essence directing a sharing of this “legislative” power with those administrators.

That boils the issue down further. Does this particular rule-making exercise cross the line beyond which the sharing stops? The LaSalle court thinks so. The Office of Court Administration does not. We’ll have to await appellate court input on that.

The rule-making power conferred on the court system is no small thing. It accounts, for example, for all the Uniform Rules that fill two McKinney’s soft-covered books, each more than an inch thick and recompiled annually. Playing the devil’s advocate, we might juxtapose the affirmation rule with each of the innumerable subjects addressed in those rules and then ask whether the affirmation rule emerges as all that much of an outlier. The rule seems no more a trespass on legislative prerogative than many parts of (for example) the many-parted Uniform Rule 202.5, which in supreme and county court governs “Papers Filed in Court”.

And what about the “halt in the prosecution of foreclosure actions” that the LaSalle court says the affirmation rule has brought about? Would it be better to leave the issue of the propriety of the papers in each case to individual motion by each individual defendant? Would hundreds or perhaps thousands of motions do better than one rule that clears the decks of all the cases for the brief time it takes each plaintiff’s lawyer to reexamine the papers in each case, fill in what’s missing, and then “affirm” that all is now well? Doesn’t that make for a smoother running of the courts than requiring each judge in each case to go through unaffirmed papers and do the weeding out that the rule just wants the plaintiff’s lawyer to undertake to spare the courts the burden?

An irresistible analogy occurs to us here. Back in the 1960s, the situation commonly referred to as “sewer service” reached epidemic proportions. (Ironically, it has recently reached that level again. See Siegel’s Practice Review 208:1.) It led to the 1973 enactment of a provision – now subdivision (c) of CPLR 5015 – that authorized an en masse vacatur of fraudulently secured default judgments, not on application by each victimized defendant, but with a single proceeding by an administrative judge. (See Siegel, New York Practice 4th Ed. §§ 71, 293.) The practice avoided a huge number of individual motions, essentially an administrative accomplishment, and in fact, before the legislature got around to codifying the practice, it was done without any legislation at all.

The affirmation rule at issue here seems to us even less intrusive into legislative powers. It merely requires plaintiffs’ attorneys to review papers in advance of court submission so as to assure that if a defendant does default, the default will not be undone for paper defects avoidable by requiring an attorney’s affirmation that the papers are in order. The requirement is designed, not to dispose of each case on its merits, but to aid the court in considering its merits – an attainment almost classically categorizable as “administrative” and the kind of effort one would expect from those charged with running the courts."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

This was in a series of earlier blogs but the following news story will illustrate what how far some school districts will go:

A homeless woman from Bridgeport who enrolled her 6-year-old son at a Norwalk elementary school has become the first in the city to be charged with stealing more than $15,000 for the cost of her child's education.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

When the claimant arrived, I advised the claimant of what I found in the file and that it would appear that the ALJ will adjourn the case. And shortly thereafter, this is exactly what happened: the ALJ came in to the waiting room and advised us that because the notice was sent out to the employer's first service representative and not the employer's new service representative, the hearing will be adjourned.

This was the third time the claimant had to appear at a hearing in which the employer did not show up. This was my second time.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

I appeared at the hearing office on October 5, 2010 at 9am. I asked to review the file again because, as stated in the prior post, I was unsure as to why the first employer service representative was still listed on the latest notice of hearing after being advised that the application to reopen was being made by a new employer service representative.

In reviewing the file, there was a fax request made the day before by the new employer service representative for an adjournment on the grounds that they were not properly notified.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

I confirmed with the claimant that we would meet on October 5, 2010 at 9am, an hour before the third scheduled hearing at the Garden City Hearing Office. However, I was still unsure as to why the first employer service representative was still listed on the latest notice of hearing after being advised that the application to reopen was being made by a new employer service representative.

HAPPY EASTER!

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is the next page of the notice. As you can see, the notice is quite similar to the Notice of Hearing mailed on July 12, 2010.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The Notice of Hearing sent out on September 27, 2010 still lists the first service representative for employer - even though I was advised that the third application was being made by a new service representative. Here is page 1 of the notice.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Schedules were checked and a new hearing - the third one - was tentatively scheduled for October 5, 2010 at 10am. I so advised the claimant.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

This notice generated some confusion - why would the Appeal Board not send me a copy? Why was it not a notice of a application to reopen? A few calls to the ALJ office revealed that the employer had changed service representatives and now the new service representative was making a third application to reopen.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Then in the beginning of August 2010, the claimant advised me that the DOL sent out a notice regarding the Employer's objection to benefits and a copy was forwarded to me by the claimant.

HAPPY PASSOVER!

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

After the decision, the wait began. For some reason, although I was listed as attorney for the claimant, the decision was not mailed to me so I asked the claimant to send me a copy. The claimant was still entitled to benefits but no one knew what the employer's next step would be.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 3 of the July 19, 2010 decision.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 2 of the July 19, 2010 decision.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Before I post the rest of the decision, note the following:

1. Although redacted from the March 20, 2011 post of the first default decision dated February 4, 2010, here I kept the name of the service representative for the employer - it is the same service representative for the first defaulted hearing of February 4, 2010.

2. At the bottom of the first page, the "Issues" that were to be presented at the July 19, 2010 hearing was the employer's application to reopen the default of February 4, 2010.

3. The bottom of the notice states in bold "EMPLOYER SECOND DEFAULT - EMPLOYER'S CASE". This advises everyone that the employer is the party who was requesting the hearing and that this is the second time the employer has made the claimant attend a hearing but did not show up.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

A decision and notice of decision was mailed and dated July 19, 2010. Here is page 1 of the July 19, 2010 decision.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

At this point, the Claimant's anxiety understandably continued. When the ALJ announced that there was a default, the ALJ did state to both myself and the Claimant that the Employer could and/or may apply to reopen again. Again, the applicable regulation is:

"Section 461.8 Reopening.

On application duly made, an administrative law judge may reopen a case where a decision was rendered upon or following the default of a party affected thereby or following the withdrawal of a request for hearing by a party. Such application shall be made to the chief administrative law judge or a senior administrative law judge who thereupon shall designate an administrative law judge to act upon the application. If such party shows good cause for his default or for his withdrawal of his request for a hearing, he shall be entitled to a hearing on the merits."

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Back to Case No. 4 and as a recap:

1. The Claimant was terminated.

2. The Claimant applied for UI benefits.

3. The Employer objected.

4. The DOL investigated.

5. The DOL determined that the Claimant was entitled to benefits.

6. The Employer filed a Request For Hearing.

7. The Employer defaulted at the hearing.

8. The ALJ upheld the determination of the DOL.

9. The Employer filed (it's first of many) application to reopen.

10. The Claimant contacted me for representation.

11. I requested the ALJ to transfer the case to the Garden City office.

12. The ALJ sent a notice of hearing for July 19, 2010.

Then, I reviewed the file, I had the Claimant furnish me with all the information I needed to present the Claimant's case, I researched the law and on July 19, 2010, the Claimant and I appeared - but the Employer defaulted. This is now Default Number 2: although this was my first hearing with the Claimant, this was the second time the Claimant appeared at a hearing and the second time the Employer defaulted.

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

As a final note, here is another recent decision from the Department of Education which will illustrate the issues regarding a change in residence. In summary, this is the issue facing parents in foreclosure and/or divorce. With respect to foreclosure:

1. If the school discovers that there has been a change of residence, the school has the option of excluding the child from the school. If it exercises that option, it also has the option to:

A. Permit the continued education of the child provided that the parents pay future tuition and reimburse for past tuition (which varies from district to district and can be high).

B. Exclude the child and start a court action for full reimbursement.

With respect to divorce, additional questions arise. The school of course has the same options as in foreclosure and can seek reimbursement (the liability again belonging to both parents) as set forth above. But what if the parents have consented to a parenting plan in which the child spends an equal amount of time at both residences? This must be addressed by attorneys for the spouses in the situation where such a parenting plan is adopted and the child is not attending a private education institution. And if the child is attending a public school and there is a change in residence but not a change in schools, the issue of a possible claim for reimbursement must be addressed in resolving the financial aspects of a divorce.

And what is interesting to note that in the following case, the issue was raised by an "anonymous report". This should alert parents that the "anonymous report" can be from a neighbor, an angry spouse, the school checking foreclosure notices, etc.

"Appeals of C.R., on behalf of her children B.R., M.R, B.R. and P.R., from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 15,642

(August 20, 2007)

Feerick Lynch MacCartney, PLLC, attorneys for petitioner, Mary E. Marzolla, Esq., of counsel

Lexow, Berbit & Associates, P.C., attorneys for respondent, Susan Mills Richmond, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her children are not district residents entitled to attend its schools tuition-free. Because the appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.

Petitioner is the mother of two sets of twins. During the 2006-2007 school year, twins B.R. and M.R. attended first grade, and twins B.R. and P.R. attended fourth grade in respondent’s district.

From 1997 until 1999, petitioner and the children’s father lived at Tennyson Drive, Nanuet, within respondent’s district. The residence at Tennyson Drive was owned by petitioner’s sister and is divided into two apartments.

In 1999, petitioner and the children’s father married and purchased a home at Green Bower Lane in New City, outside respondent’s district. Petitioner claims the family lived at the Green Bower Lane residence until petitioner and her husband separated “informally” in 2001.

After the separation, petitioner claims that she and the four children moved back to Tennyson Drive to live with her sister and mother in the home’s 774 sq. ft. lower-level apartment. Petitioner claims that her husband continues to reside alone at the Green Bower Lane residence, that the children regularly visit him there and that these visits include dinners and sleepovers.

On February 13, 2007, respondent received an anonymous report that petitioner resided outside its district. Based on this information, respondent hired an investigator to conduct surveillance on both the Tennyson Drive and Green Bower Lane residences.

On February 27, 2007, the investigator observed petitioner and two of the children arrive at the Tennyson Drive residence at approximately 6:54 a.m. The children exited the house and boarded respondent’s school bus at approximately 8:13 a.m. At approximately 3:05 p.m., the two children boarded respondent’s school bus and arrived at the Tennyson Drive residence at 3:30 p.m. At 3:39 p.m., petitioner and all four children exited the Tennyson Drive residence and drove to the Green Bower Lane residence.

On March 1, 2007, the investigator observed petitioner’s car at the Green Bower Lane residence at approximately 5:35 a.m. At approximately 6:09 a.m., petitioner and two of the children left the Green Bower Lane residence and drove to Tennyson Drive. The children exited the Tennyson Drive residence and boarded respondent’s school bus at 8:10 a.m.

On March 13, 2007, at approximately 6:44 a.m., the investigator observed petitioner, her husband, and all four children leave the Green Bower Lane residence in petitioner’s car.

By letter dated March 21, 2007, respondent’s supervisor of student support and community services (“supervisor”) notified petitioner that the district had obtained information indicating that petitioner was not a district resident. The letter stated that if petitioner failed to produce evidence of residency by March 30, 2007, all four children would be excluded from respondent’s schools after that date.

By letter dated April 10, 2007, petitioner produced copies of several documents to support her claim of residency, including her driver’s license, electric and gas bills for Tennyson Drive from 2002 through 2007, her automobile insurance identification card for a policy issued March 30, 2007, and her automobile registration, which was dated April 5, 2007. Petitioner also submitted a deed dated April 2, 2007 in which her sister transferred one-half of the Tennyson Drive property to petitioner.

In addition, petitioner produced notarized documents from her sister and mother stating that petitioner and the children live with them at Tennyson Drive. Petitioner also submitted several letters to support her residency claim, including one from a neighbor at Tennyson Drive and another from a woman who administered a speech language evaluation to one of the children at the Tennyson Drive residence in 2003.

By letter dated April 17, 2007, respondent’s director of business services (“director”) affirmed the determination that petitioner was not a district resident and stated that the children would be excluded from respondent’s schools after April 25, 2007. This appeal ensued. Petitioner’s request for interim relief was granted on April 26, 2007.

On May 15, 2007, petitioner served respondent with a second appeal in this matter (“second appeal”). The second appeal presents similar issues of fact and law and includes additional information in support of petitioner’s residency claim, including affidavits from her husband, sister and mother, and receipts for painting and the installation of new windows at the Tennyson Drive residence.

Petitioner claims, inter alia, that she is a district resident and that her children are entitled to attend respondent’s schools tuition-free. Petitioner also seeks an award of costs and attorney fees.

Respondent claims that petitioner resides outside its district and seeks tuition reimbursement in the amount of $87,099.11. Respondent also urges that petitioner’s second appeal not be considered on the grounds that it is an improper attempt to introduce evidence intended to buttress the claims asserted by petitioner in her original appeal.

Education Law §3202(1) provides, in pertinent part:

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). “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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 (8 NYCRR §275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Petitioner claims that after she and her husband entered into an “informal and amicable” separation, she and the children moved back to her sister’s Tennyson Drive residence. To support her claim, petitioner submits several documents that list Tennyson Drive as her address. However, several of these documents originated after respondent’s residency investigation began. For example, the insurance and registration on petitioner’s car are dated March 30 and April 5, 2007, respectively. In addition, the deed from petitioner’s sister transferring a one-half interest in the Tennyson Drive property to petitioner is dated April 2, 2007.

In the second appeal, petitioner includes affidavits from her husband, sister, and mother -– each supporting the claims made in petitioner’s original appeal. Petitioner also includes receipts dated July 24, 2006 and January 19, 2007 indicating that she paid for improvements made to the Tennyson Drive residence.

While petitioner’s documentation indicates that she uses Tennyson Drive as her mailing address and may have paid some utility and repair bills for that residence, they are not dispositive of petitioner’s residency, particularly in light of the district’s investigation. Respondent also submitted evidence that petitioner and her husband remain co-owners of the Green Bower Lane residence, for which petitioner claims a STAR exemption.

Further, in response to the second appeal, respondent submitted an affidavit from its investigator stating that he interviewed a neighbor of the Tennyson Drive address. The neighbor stated that, “on a daily basis,” petitioner brings the children to the Tennyson Drive residence, where they board respondent’s school bus in the morning; that the children ride the bus to Tennyson Drive in the afternoon; and that petitioner and the children “would leave in the early evening and return the next day.”

Respondent also submitted affidavits from three of the children’s teachers stating that they have each had difficulty reaching petitioner at the Tennyson Drive address. One teacher stated, “Every time I called the in-district house, [petitioner] was never home. The grandmother stated that [petitioner] would get back to me ... [N]either child was able to learn nor repeat back his/her address or phone number.”

Based on the record before me, I find that petitioner has failed to establish that her children are district residents entitled to attend respondent’s schools tuition-free. Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petitions must be dismissed on the record before me, I note that petitioner has the right to reapply to the district for admission on her children’s behalf if circumstances have changed.

With respect to petitioner’s request for costs and attorney fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

With respect to respondent’s claim for tuition reimbursement from petitioner in the amount of $87,099.11, I note that the Commissioner has historically declined to award tuition in residency appeals (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025; Appeal of Baronti, 42 id. 140, Decision No. 14,802; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). Such relief should be sought in a court of competent jurisdiction (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025).

THE APPEALS ARE DISMISSED."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is another recent case. It illustrates the procedures involved. An investigation is done on residencey (here it was a temporary change). The school board sent a request for school tuition reimbursement and the issue of repayment must now be resolved in a regular court and not the DOE:

"Appeal of O.S. and D.S., on behalf of their children J.S. and K.S., from action of the Board of Education of the Herricks Union Free School District regarding residency.

Decision No. 16,201

(February 17, 2011)

Regina Brandow, P.C., attorneys for petitioner, Regina Brandow, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Herricks Union Free School District (“respondent”) that their children are not district residents. The appeal must be dismissed.

Petitioners have four children, two of whom, J.S. and K.S., are school age. On or about August 15, 2009, petitioners and their children moved into O.S.’s parents’ home on Bellwood Drive in New Hyde Park (“Bellwood address”), in respondent’s district. Thereafter, they registered J.S. and K.S. in the district’s schools. On or about September 15, 2009, O.S.’s father purchased a home on Hillside Boulevard in New Hyde Park (“Hillside address”), outside respondent’s district. Following an investigation, on or about December 9, 2009, the superintendent notified petitioners that J.S. and K.S. were not district residents and would be excluded from the district’s schools, effective December 18, 2009. O.S. and her mother met with the superintendent on December 16, 2009 and stated that petitioners still lived at the Bellwood address.

Additional surveillance was conducted and by letter dated March 9, 2010, the superintendent advised petitioners that their residency in the district was in question. After a residency meeting on March 22, 2010, the superintendent notified petitioners by letter dated March 23, 2010, that J.S. and K.S. were not district residents and would be excluded from attending district schools effective April 5, 2010. The district further claimed back tuition in the amount of $10,529.40 for each child for the period of September 1, 2009 through April 5, 2010. On April 13, 2010, petitioners appealed the superintendent’s decision to respondent. Respondent denied petitioners’ appeal and this appeal ensued.

Petitioners allege that they resided at the Bellwood address from September 2009 through April 5, 2010 while they were renovating the Hillside address. Petitioners request a determination that J.S. and K.S. were residents of the district, entitled to attend its schools without payment of tuition, from September 2009 through April 5, 2010.

Respondent maintains that it properly determined that petitioners’ children were not district residents and that the appeal is moot. Respondent also challenges the scope of petitioners’ reply.

The appeal 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). Petitioners withdrew J.S. and K.S. from the district’s schools in April 2010. Accordingly, their residency is no longer at issue.

Petitioners argue that the appeal is not moot because respondent has sent them non-resident tuition bills for the period from September 2009 through April 5, 2010 when J.S. and K.S. attended school in the district. The Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 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 Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). Therefore, any discussion of the merits of petitioners’ 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 Ed Dept Rep 65, Decision No. 15,959).

THE APPEAL IS DISMISSED."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is a typical fact pattern of what happens in a divorce situation with respect to the child continuing in a school district:

"Appeal of GARY HELMS, on behalf of his son, DAVID, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 13,668

(August 28, 1996)

Arnold J. Hauptman, Esq., attorney for petitioner

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that his son, David, is not a resident of the Deer Park Union Free School District ("district") and is, therefore, not entitled to attend its schools tuition-free. The appeal must be dismissed.

At the beginning of the 1995-96 school year, David lived with his parents at 12 Hendel Circle, Deer Park, and attended the district's high school. In December 1995, petitioner became involved in a divorce action with David's mother. As a result of this dispute, on January 4, 1996, petitioner and his son moved to 19 Bagatelle Road, Dix Hills, an address located outside the district. David's mother continues to reside at 12 Hendel Circle, in the district.

In the context of the pending divorce action, both petitioner and David's mother have sought custody of David. However, there is no evidence that the court has issued a temporary or permanent order concerning custody.

By letter dated March 26, 1996, the district's attendance teacher notified petitioner that since he and David resided outside the district, David was no longer eligible to attend the district's schools. Petitioner's attorney appealed the decision to respondent. On April 2, 1996, respondent denied the appeal.

Petitioner commenced this appeal on April 4, 1996 and requested an interim order. On April 16, 1996, Acting Commissioner Sheldon issued an interim order directing respondent to admit David to the district's schools pending a determination on the merits.

Petitioner contends that his residence outside the district is temporary. Petitioner further contends that until the court determines custody, David's residence remains in the district. Respondent maintains that petitioner and his son reside at an address outside the district. Respondent further maintains that there is no evidence that David will ever return to reside in the district.

Education Law '3202(1) provides, in pertinent part:

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.

A child's residence is presumed to be that of his parents (Appeal of Juracka, 31 Ed Dept Rep 282; Appeal of Forde, 29 id. 359). Where a child's parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc 337, 104 NYS 122, aff'd. 196 NY 551; Appeal of Juracka, supra; Matter of Manning, 24 Ed Dept Rep 33). Where a child's time is divided between two households, the determination of the child's residence rests ultimately with the family (Appeal of Juracka, supra; Appeal of Forde, supra).

In this case, it is undisputed that David lives with petitioner outside the district. Further, there is no evidence that David spends any time at his mother's residence in the district.

There is insufficient evidence in the record to support petitioner's assertion that his residence outside the district is temporary. The record indicates that petitioner and his son moved to an apartment outside the district. Although petitioner contends that he will seek possession of the marital residence if the court awards him custody, it is not known when and if he will in fact return to the marital residence. Further, there is no evidence that petitioner intends to make arrangements to establish another residence in respondent's district if he cannot return to the marital residence. In addition, the record is devoid of any evidence that petitioner continues to maintain significant community ties within the district other than his son's continued attendance in the district's schools. Therefore, I am unable to conclude on the record before me that petitioner is in fact temporarily housed outside the district and is actively taking steps to return there (Appeal of Kenneth R., 30 Ed Dept Rep 297).

It appears from the record that it is petitioner's intention to gain permanent custody of David and to have him continue to reside with him. Since residence is based upon an individual's physical presence within the district and intention to remain (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Bonfante-Ceruti, 31 id. 38), I find that respondent correctly concluded that David does not reside within the district.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. Since David is not a resident of respondent's district, respondent has the authority to require petitioner to pay tuition as a condition of David's continued enrollment. To the extent petitioner pays school taxes on his property in respondent's district, he is entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law '3202(3).

Finally, I note that David's residency status may change in the event David's mother is awarded custody or if petitioner moves back into respondent's district. In either event, the child's status should be re-evaluated by respondent.

THE APPEAL IS DISMISSED."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is the statute from the NYS Education Law:

"§ 3202. Public schools free to resident pupils; tuition from
nonresident pupils. 1. 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. Provided further that such person may
continue to attend the public school in such district in the same
manner, if temporarily residing outside the boundaries of the district
when relocation to such temporary residence is a consequence of such
person's parent or person in parental relationship being called to
active military duty, other than training. Notwithstanding any other
provision of law to the contrary, the school district shall not be
required to provide transportation between a temporary residence located
outside of the school district and the school the child attends. A
veteran of any age who shall have served as a member of the armed forces
of the United States and who shall have been discharged therefrom under
conditions other than dishonorable, may attend any of the public schools
of the state upon conditions prescribed by the board of education, and
such veterans shall be included in the pupil count for state aid
purposes. A nonveteran under twenty-one years of age who has received a
high school diploma shall be permitted to attend classes in the schools
of the district in which such person resides or in a school of a board
of cooperative educational services upon payment of tuition under such
terms and conditions as shall be established in regulations promulgated
by the commissioner; provided, however, that a school district may waive
the payment of tuition for such nonveteran, but in any case such a
nonveteran who has received a high school diploma shall not be counted
for any state aid purposes. Nothing herein contained shall, however,
require a board of education to admit a child who becomes five years of
age after the school year has commenced unless his birthday occurs on or
before the first of December.
1-a. No pupil over the compulsory attendance age in his or her school
district shall be dropped from enrollment unless he or she has been
absent twenty consecutive school days and the following procedure is
complied with: The principal or superintendent shall schedule and
notify, in writing and at the last known address, both the student and
the person in parental relation to the student of an informal
conference. At the conference the principal or superintendent shall
determine both the reasons for the pupil's absence and whether
reasonable changes in the pupil's educational program would encourage
and facilitate his or her re-entry or continuance of study. The pupil
and the person in parental relation shall be informed orally and in
writing of the pupil's right to re-enroll at any time in the public
school maintained in the district where he or she resides, if otherwise
qualified under this section. If the pupil and the person in parental
relationship fail, after reasonable notice, to attend the informal
conference, the pupil may be dropped from enrollment provided that he or
she and the person in parental relation are notified in writing of the
right to re-enter at any time, if otherwise qualified under this
section.
2. Nonresidents of a district, if otherwise competent, may be admitted
into the school or schools of a district or city, upon the consent of
the trustees or the board of education, upon terms prescribed by such
trustees or board.
3. The school authorities of a district or city must deduct from the
tuition of a nonresident pupil, whose parent or guardian owns property
in such district or city and pays a tax thereon for the support of the
schools maintained in such district or city, the amount of such tax.

4. a. Except as provided in subdivision five of this section, the cost
of instruction of pupils placed in family homes at board by a social
services district or a state department or agency shall be borne by the
school district in which each such pupil resided at the time the social
services district or state department or agency assumed responsibility
for the placement, support and maintenance of such pupil; provided,
however, that such cost of instruction shall continue to be borne, while
such pupil remains under the age of twenty-one years, by any social
services district or state department or agency which assumed
responsibility for tuition costs for any such pupil prior to January
one, nineteen hundred seventy-four. Where a pupil is placed pursuant to
this subdivision outside the pupil's school district of residence at the
time of such placement, the cost of instruction shall be borne by the
district of residence and the tuition paid to the school district
furnishing instruction shall be computed as provided in paragraph d of
this subdivision, except that, where the family home at board receives
program support from a child care institution affiliated with a special
act school district as defined in subdivision eight of section four
thousand one of this chapter, and the board of education of such
district furnishing instruction, upon the recommendation of its
committee on special education, contracts for such pupil's education
pursuant to paragraph c, d, e, or f of subdivision two of section
forty-four hundred one of this chapter or for a nonresidential placement
pursuant to paragraph l of such subdivision, costs incurred shall be
reimbursed in accordance with paragraph e of this subdivision.
Notwithstanding any inconsistent provision of law, where the permanent
residence of a pupil is outside of the state, the school district in
which the pupil was located at the time the public agency placed such
pupil shall be deemed the district of residence of such pupil for
purposes of this subdivision and shall be responsible for the cost of
instruction of such pupil.
b. Children cared for in free family homes and children cared for in
family homes at board, when such family homes shall be the actual and
only residence of such children and when such children are not supported
and maintained at the expense of a social services district or of a
state department or agency, shall be deemed residents of the school
district in which such family home is located.
c. Children cared for in free family homes and children cared for in
family homes at board, when such family homes are not the actual and
only residences of such children and when such children are not
supported and maintained at the expense of a social services district or
of a state department or agency, and who apply for the first time for
admittance to the schools of the district in which such family home is
located during the school year 1973--1974 shall be admitted upon terms
and conditions including the payment of tuition, established by the
board of education of such school district, unless such board of
education shall establish to the satisfaction of the commissioner that
there are valid and sufficient reasons for refusal to receive such
children.
d. For the purposes of this subdivision, tuition shall be fixed in an
amount which represents the additional operating cost to the school
district resulting from the attendance of a child for whom tuition is
required, computed in accordance with a formula established by the
commissioner of education.
e. Where the board of education of a school district furnishing
instruction for a pupil placed pursuant to this subdivision in a family
home at board that receives program support from a child care
institution affiliated with a special act school district, other than

the board of the pupil's school district of residence as defined in
paragraph a of this subdivision, upon the recommendation of its
committee on special education, contracts for the instruction of such
pupil pursuant to paragraph c, d, e, or f of subdivision two of section
forty-four hundred one of this chapter or for a nonresidential placement
pursuant to paragraph l of such subdivision, such board shall submit a
claim to the commissioner for current year reimbursement of costs
incurred for such pupil. The commissioner shall pay such claim in
accordance with the applicable provisions of section thirty-six hundred
nine-b of this chapter and shall be reimbursed by the school district
identified as the pupil's school district of residence as defined in
paragraph a of this subdivision. The commissioner shall deduct the
amount of such claim from moneys otherwise due the school district of
residence.
f. The identity of the school district of residence at the time the
public agency placed the pupil pursuant to paragraph a or paragraph e of
this subdivision shall be established in accordance with the following
procedure:
(i) Within ten days of the placement of such pupil, the public agency
or its designee shall give written notice of such placement to the board
of education of the school district believed to be the school district
of residence. Such notification shall include the name of the pupil and
any particulars about the pupil that pertain to the identification of
the school district as the school district of residence as defined in
paragraph a of this subdivision.
(ii) A board of education of a school district which receives
notification pursuant to subparagraph (i) of this paragraph may submit
to the public agency, within ten days of its receipt of such notice,
additional evidence to establish that it is not the pupil's district of
residence as defined in paragraph a of this subdivision. Any evidence so
submitted shall be considered by the agency prior to making its final
determination, which shall be made no later than five days after the
agency's receipt of such additional evidence. In the event such school
district fails to submit additional evidence within such ten day period,
the determination of the public agency shall be final and the
notification provided pursuant to subparagraph (i) of this paragraph
shall be deemed final notification of such determination.
(iii) If, upon its review, the public agency determines that the
school district notified pursuant to subparagraph (i) of this paragraph
was not the pupil's district of residence, the public agency shall send
notification to the correct school district, in the form prescribed by
subparagraph (i) of this paragraph. Alternatively, if, upon its review,
the public agency determines that the school district originally
designated pursuant to subparagraph (i) of this paragraph is the pupil's
district of residence the public agency shall notify such district in
writing of its final determination.
(iv) The board of education of the school district finally determined
by the public agency to be the pupil's school district of residence may
appeal such determination to the commissioner within thirty days of its
receipt of final notification pursuant to this paragraph. Such an appeal
shall be conducted in the same manner as an appeal from the actions of
local school officials pursuant to section three hundred ten of this
chapter, except that the factual allegations of the petitioner shall not
be deemed true in the event the public agency elects not to appear in
the appeal. The petitioner shall join as a party to the appeal any other
school district suspected to be the pupil's actual school district of
residence.

(v) If the commissioner finds that the school district notified
pursuant to subparagraph (i) or (iii) of this paragraph was not the
pupil's school district of residence as defined in paragraph a of this
subdivision and that the correct school district was not joined as a
party to the appeal, the commissioner shall direct the public agency to
notify the correct school district pursuant to subparagraph (i) of this
paragraph.
(vi) Notwithstanding any inconsistent provisions of law, during the
pendency of all proceedings to review a denial of financial
responsibility, the commissioner shall issue an interim order assigning
such financial responsibility to the school district or, alternatively,
upon a determination that the public agency failed to make reasonable
efforts to identify the residence of such child, to the public agency.
In the event the public agency fails to provide timely notice pursuant
to subparagraph (i) of this paragraph, or fails to render its final
determination in a timely manner, the public agency responsible for such
pupil's residential placement shall reimburse the commissioner for the
payments made to the district furnishing instruction pursuant to this
paragraph during the pendency of all proceedings or for the duration of
the current school year, whichever is longer, and the state comptroller
shall withhold such amount from any moneys due the county or the city of
New York, on vouchers certified or approved by the commissioner, in the
manner prescribed by law or shall transfer such amount from the account
of such state department or agency upon certification of the
commissioner, and such funds shall be credited to the general support
for public schools local assistance account of the department.
(vii) Any final determination or order of the commissioner concerning
the school district of residence of any pupil under this section may
only be reviewed in a proceeding brought in the supreme court pursuant
to article seventy-eight of the civil practice law and rules. In any
such proceeding under such article seventy-eight, the court may grant
any relief authorized by the provisions of section seventy-eight hundred
six of such law and rules and may also, in its discretion, remand the
proceedings to the commissioner. A local social services commissioner or
any state department or agency placing pupils pursuant to this
subdivision is a proper party in any such appeal or proceeding.
(viii) Upon completion of all proceedings to review the denial of
financial responsibility for the costs of instruction pursuant to this
paragraph, the commissioner shall refund any payments made by a party
cleared of such responsibility and shall collect any payments owed by a
party found to have such responsibility. Where such transactions involve
a school district liable for reimbursement pursuant to paragraph e of
this subdivision, the commissioner shall appropriately increase or
decrease the moneys due a school district by such amount in accordance
with the provisions of section thirty-six hundred nine-b of this
chapter. Where such transactions involve the public agency making a
placement pursuant to this subdivision, the comptroller shall increase
or decrease the moneys due such public agency by such amount upon
certification of the commissioner, transferring such amount to or from
the account of such state department or agency to or from the general
support for public schools local assistance account of the department.
g. If within ninety days from the entry of an order or judgment of a
court of competent jurisdiction or the receipt of a decision of the
commissioner pursuant to section three hundred ten of this chapter,
determining the responsibility of a school district to pay tuition for a
pupil in accordance with the provisions of paragraph a of this
subdivision or of section five hundred four of the executive law, such
school district has not made payment to the school district providing

instruction to such pupil, the school district entitled to such payment
may make application to the commissioner to receive a sum in the amount
of such tuition from the apportionment of public money payable to the
school district required to pay such tuition. The application for
payment shall be accompanied by a certified copy of the order or
judgment of a court, or a copy of the decision of the commissioner, and
by proof of service by first class mail of a copy of such application
upon the school district required to pay such tuition. Unless the school
district required to pay such tuition shall have notified the
commissioner of such payment within thirty days from the receipt of such
application, the commissioner shall withhold an amount equal to the
tuition for such pupil from the public money payable to the school
district responsible for such tuition and shall pay such amount to the
school district which has provided instruction to such pupil. The
commissioner is authorized to promulgate regulations to implement the
provisions of this paragraph.
5. a. Children who reside in a school for the mentally retarded
operated by the department of mental hygiene and for whom the department
has assumed responsibility for support and maintenance prior to July
one, nineteen hundred seventy-seven and who are placed in a family home
at board, a duly incorporated orphan asylum or other institution for the
care, custody and treatment of children shall be admitted to the schools
of the school district in which such family home or institution is
located. The education department is authorized to reimburse each school
district furnishing educational services to such children for the direct
cost of such services in accordance with regulations promulgated by the
commissioner and approved by the director of the budget. The educational
costs for these children shall not be otherwise aidable or reimbursable.
b. Children who reside in a school for the mentally retarded operated
by the department of mental hygiene and for whose support and
maintenance the department assumes responsibility on or after July one,
nineteen hundred seventy-seven and who are thereafter placed in a family
home at board, a duly incorporated orphan asylum or other institution
for the care, custody and treatment of children shall be admitted to the
schools of the school district in which such family home or institution
is located. The education department is authorized to reimburse each
school district furnishing educational services to such children for the
direct cost of such services in accordance with regulations promulgated
by the commissioner and approved by the director of the budget. The
educational costs for these children shall not be otherwise aidable or
reimbursable. The school district in which the child resided at the time
the department of mental hygiene assumed responsibility for the support
and maintenance of such child shall reimburse the education department
for its expenditure on behalf of such child in an amount equal to the
school district basic contribution, as such term is defined in
subdivision eight of section four thousand four hundred one of this
chapter. The comptroller may deduct from any state funds which become
due to a school district an amount equal to the reimbursement required
to be made by such school district in accordance with this paragraph,
and the amount so deducted shall not be included in the operating
expense of such district for the purpose of computing the approved
operating expense pursuant to paragraph t of subdivision one of section
thirty-six hundred two of this chapter. The department of mental hygiene
shall notify the education department of the name of the child, the
location of the family home or institution where the child is to be
placed and the name of the school district in which such child resided
at the time the department of mental hygiene assumed responsibility for
his or her support and maintenance.

c. (1) The education department is authorized to reimburse each school
district furnishing educational services to children residing in schools
for the mentally retarded operated by the office of mental retardation
and developmental disabilities for the direct cost of such services in
accordance with regulations promulgated by the commissioner and approved
by the director of the budget.
(2) The school district in which each such child resided at the time
the office of mental retardation and developmental disabilities assumed
responsibility for the support and maintenance of such child shall
reimburse the education department for its expenditures on behalf of
such child, in an amount equal to the school district basic contribution
as such term is defined in subdivision eight of section forty-four
hundred one of this chapter, for any such child admitted to a state
school for the retarded on or after July first, nineteen hundred
seventy-eight. The comptroller may deduct from any state funds which
become due to a school district an amount equal to the reimbursement
required to be made by such school district in accordance with this
paragraph and the amount so deducted shall not be included in the
approved operating expense of such district for the purpose of computing
the approved operating expenses pursuant to paragraph t of subdivision
one of section thirty-six hundred two of this chapter.
d. (1) Children who reside in an intermediate care facility for the
mentally retarded, other than a state operated school for the mentally
retarded, as defined in regulations of the office of mental retardation
and developmental disabilities, shall be admitted to the public schools,
except as otherwise provided in subparagraph fourteen of this paragraph.
The trustees or board of education of the school district in which such
facility is located shall receive such children in the school or schools
of the district for instruction and for the provision of necessary
related services for a compensation to be fixed by the trustees or board
of education, unless such trustees or board of education shall establish
to the satisfaction of the commissioner of education that there are
valid and sufficient reasons for refusal to receive such children.
Evaluation of the educational needs of such children and placement in
appropriate educational programs shall be made in accordance with
article eighty-nine of this chapter.
(2) A child who resides in an individualized residential alternative
as defined in regulations of the office of mental retardation and
developmental disabilities which is located in a school district other
than the school district in which such child's parent or person in
parental relation resided at the time such child was placed in an
institution under the auspices of such office shall be deemed to reside
in an intermediate care facility for purposes of this subdivision to the
extent such child is enrolled in a home and community based waiver
program approved by the Health Care Financing Administration.
(3) Such intermediate care facility is authorized to contract with the
trustees or board of education of such school district for the provision
of services, including transportation.
(4) The education department shall reimburse the school district in
which such intermediate care facility is located for the full cost of
all services, which shall, notwithstanding any inconsistent provision of
law, include transportation services provided pursuant to a contract
authorized by this paragraph. Provided, however, that notwithstanding
any other law, rule or regulation to the contrary, that no reimbursement
shall be payable pursuant to this subparagraph for due process costs
incurred on or after July first, two thousand nine. Such reimbursement
shall be for the period from September first through June thirtieth, and
state reimbursement for July and August programs shall be in accordance

with subdivision one of section forty-four hundred eight of this
chapter. The provisions of subdivision two of such section forty-four
hundred eight shall apply to all July and August programs provided
pursuant to this section.
(5) The school district in which the child resided at the time of
placement in such intermediate care facility shall reimburse the
education department for its expenditure on behalf of such child in an
amount equal to the school district's basic contribution, as such term
is defined in subdivision eight of section forty-four hundred one of
this article for any child first admitted to such intermediate care
facility, on or after July first, nineteen hundred seventy-nine.
(6) Upon certification by the commissioner of education, the
comptroller may deduct from any state funds which become due to the
school district an amount equal to the reimbursement required to be made
by such school district in accordance with this paragraph, and the
amount so deducted shall not be included in the operating expense of
such district for the purpose of computing the approved operating
expenses pursuant to paragraph t of subdivision one of section
thirty-six hundred two of this article.
(7) Within forty-five days of the placement of a child in a school
district, the intermediate care facility shall notify the school
district in which the child resided at time of entrance to the
intermediate care facility and the school district in which the facility
is located. Such notice shall include the name of the child, the
location of the intermediate care facility, and the name of the school
district in which such child resided at the time of placement.
(8) A board of education of a school district which receives
notification that a child has been placed in an intermediate care
facility for the mentally retarded may deny financial responsibility for
any child by written notice within twenty days of such notification to
the school district furnishing instruction and the intermediate care
facility.
(9) An intermediate care facility responsible for placing the child,
the school district furnishing instruction or the parent or guardian of
the child involved may appeal a denial of responsibility to the
commissioner of education. If the commissioner finds that the child was
not a resident of the school district that was notified that the child
was a resident therein, the commissioner shall request the intermediate
care facility to ascertain the correct school district and notify such
school district pursuant to subparagraph six of this paragraph. The
commissioner shall review and determine responsibility for the child in
question. If the commissioner finds that a child has no residence in
this state, he shall determine that there is no local contribution for
such child.
(10) If the intermediate care facility fails to make a reasonable
effort to identify the residence of such a child, such agency shall be
responsible for the local contribution and, upon notification by the
commissioner of education, shall pay such amount to the commissioner of
education.
(11) If the intermediate care facility rejects the finding of the
committee on special education of the school district of attendance, or
a finding affirmed or revised on appeal, such facility shall retain
responsibility for payment of the cost of instruction of such child.
(12) Any final determination or order of the commissioner concerning
residence or placement of any child under this paragraph may only be
reviewed in a proceeding brought in the supreme court pursuant to
article seventy-eight of the civil practice law and rules. In any such
proceeding, the court may grant any relief authorized by the provisions

of section seventy-eight hundred six of such law and rules or may, in
its discretion, remand the proceedings to the commissioner. An
intermediate care facility attempting to place a child pursuant to this
paragraph shall be considered a proper party to any such proceeding.
(13) The school district providing educational services to children
placed pursuant to this paragraph shall provide a report on the status
of each such child with a handicapping condition annually to the
committee on special education of the school district in which the child
resided at the time of admission to the intermediate care facility for
the mentally retarded. Such report shall also be sent to the parent or
guardian of the child and the office of mental retardation and
developmental disabilities.
(14) The board of education responsible for providing appropriate
educational services for a child receiving care in an intermediate care
facility developed pursuant to the residential school bed development
program, as authorized by chapter fifty-four of the laws of nineteen
hundred eighty-five or any subsequent enactment extending such program,
shall be the board of education of the school district in which such
child would be deemed to reside but for such child's placement in such
an intermediate care facility. The department shall reimburse such
school district of residence for all nonfederally reimbursable costs of
such educational services in accordance with subparagraph four of this
paragraph as if such district were the school district in which the
intermediate care facility is located, and such school district of
residence shall be responsible for reimbursement of the department for
its expenditure on behalf of the child in an amount equal to the school
district basic contribution, as defined in subdivision eight of section
four thousand four hundred one of this chapter. The comptroller may
deduct the amount of such reimbursement from any state funds due the
district in the manner prescribed in subparagraph six of this paragraph.
e. Notwithstanding the provisions of paragraph a of subdivision five
of section thirty-six hundred four of this chapter, the commissioner
shall be authorized to grant a waiver excusing the late filing of claims
submitted for costs incurred pursuant to this subdivision, upon findings
that the school district has submitted a timely request for a waiver and
has submitted proof satisfactory to the commissioner that the delay in
filing was caused by a party other than the school district. A request
for such a waiver, together with all supporting documentation, shall be
submitted to the commissioner within sixty days after the date on which
this paragraph was enacted, or within fourteen months after the end of
the school year in which services were provided pursuant to this
subdivision, whichever is later.
6. Except as provided in subdivision five of this section or by
article eighty-one of this chapter, children cared for in a hospital or
other institution for the care, custody and treatment of children, other
than a school and excepting children of the officers and employees of
such hospital or institution, shall not, by reason of their presence in
such hospital or institution, be deemed to be residents of the school
district in which such hospital or institution is located. The trustees
or board of education of the school district of their residence shall
provide educational services for such children. Such services may be
provided by a tutor employed by the district, by contract with a school
connected with such hospital or institution, or by contract with the
local public school district in which such hospital or institution is
located. Such contracts shall be limited to the cost of educational
services and shall not include maintenance or medical services.
Provided, however, if such children are supported and maintained at the
expense of a social services district, the cost of said instruction

shall be paid by the social services district which is liable for
payment of the cost of their support and maintenance. In the case of
hospitals or institutions located in the state of New York, the trustees
or board of education of a school district in which such a hospital or
institution is located shall receive such children in the school or
schools of the district for instruction for a compensation to be fixed
by the trustee or board of education, unless such trustees or board of
education shall establish to the satisfaction of the commissioner of
education that there are valid and sufficient reasons for refusal to
receive such children.
6-a. Notwithstanding subdivision six of this section the director of
the division for youth shall be responsible for the secular education of
youth under the jurisdiction of the division and may contract for such
education with the trustees or board of education of the school district
wherein a facility for the residential care of division for youth is
located. A youth attending a local public school while in residence at
such facility shall be deemed a resident of the school district where
his parent or guardian resides at the commencement of each school year
for the purpose of determining which school district shall be
responsible for the youth's tuition pursuant to section five hundred
four of the executive law.
7. Youth incarcerated in county correctional facilities or youth
shelters. a. A person under twenty-one years of age who has not received
a high school diploma and who is incarcerated in a correctional facility
maintained by a county or by the city of New York or in a youth shelter
is eligible for educational services pursuant to this subdivision and in
accordance with the regulations of the commissioner. Such services shall
be provided by the school district in which the facility or youth
shelter is located, within the limits of the funds allocated by the
commissioner for such purposes pursuant to section thirty-six hundred
two of this chapter and pursuant to a plan approved by the commissioner.
School districts shall submit such plan by July fifteenth of each school
year. Boards of education are authorized to contract for the provision
of such educational services by a board of cooperative educational
services or by another public school district.
b. Except as otherwise provided in this paragraph, the school district
in which the child resided at the time of the child's commitment to the
custody of the sheriff or local commissioner of corrections or youth
shelter shall reimburse the education department for its expenditure for
the full time equivalent attendance of such child pursuant to
subdivision thirteen of section thirty-six hundred two of this chapter
on behalf of such child, in an amount equal to the product of such full
time equivalent attendance and the school district basic contribution,
as such term is defined in subdivision eight of section forty-four
hundred one of this chapter, provided, however, that such basic
contribution shall be multiplied by the full time equivalent attendance
multiplied by one hundred twenty per centum for such children attending
programs which operate between July first and June thirtieth. If at the
applicable time specified in this paragraph a school district other than
the school district in which the child resides is responsible for the
cost of instruction of the child or for reimbursement of the state for
its expenditure on behalf of the child pursuant to any provision of this
chapter, then such other school district shall be responsible for
reimbursement of the education department in accordance with this
paragraph. Upon certification by the commissioner, the comptroller shall
deduct from any state funds which become due to a school district an
amount equal to the reimbursement required to be made by such school
district in accordance with this paragraph, and the amount so deducted

shall not be included in the operating expense of such district for the
purpose of computing the approved operating expense pursuant to
paragraph t of subdivision one of section thirty-six hundred two of this
chapter.
c. After admission of a child eligible for educational services
pursuant to this subdivision, but within a time prescribed by the
commissioner in regulations, the correctional facility maintained by the
county or the city of New York shall furnish such child with information
concerning the availability of such educational services and shall
submit a request for educational services to the school district in
which the facility is located. Such request shall conform to
requirements prescribed by the commissioner by regulation in
consultation with the state commission of correction and shall include,
but shall not be limited to, notice of: the name of the child, the name
and location of the facility in which such child is incarcerated, the
last grade completed by the child as reported by the child, the
anticipated duration of the incarceration and the last known residence
of such child at the time of the child's commitment to custody. The
school district in which the facility is located shall notify other
appropriate agencies, including, but not limited to, the education
department and the school district identified as being responsible for
the educational costs of such child pursuant to paragraph b of this
subdivision, that such a request for educational services has been
received. The commissioner shall promulgate regulations specifying the
time within which such notice shall be provided and the contents of such
notice, and establishing a procedure by which a school district may
request the commissioner to review its identification as the school
district responsible for the educational costs of such child.
d. Upon release or discharge of a child eligible for educational
services pursuant to this subdivision, the correctional facility shall
apprise such child that further educational services may be available
pursuant to this section through the school district in which the child
resides or in which the child is otherwise entitled to attend school,
and shall, at the request of the student, notify such district of the
child's desire to enroll in such district.
e. The state commission of correction shall promulgate rules and
regulations in consultation with the commissioner which shall require
each correctional facility operated by a county or the city of New York
to cooperate with the school district or board of cooperative
educational services providing educational services and to comply with
the requirements of this subdivision.
f. As used in this subdivision, "youth shelter" shall mean an
alternative residential facility for the incarceration of youths between
the ages of sixteen and twenty-one who are remanded by the criminal
courts.
8. Homeless children. A homeless child, as defined in subdivision one
of section thirty-two hundred nine of this article, over the age of five
and under twenty-one years of age, who has not received a high school
diploma, shall be entitled to attend a public school without the payment
of tuition, in accordance with the provisions of section thirty-two
hundred nine of this article.

Section: Previous Part 1 3201 3201-A 3202 3203 3204 3205 3206 3207 3207-A 3208 3208-A 3209 3209-A 3210 Next

Last modified: April 23, 2010"

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

In many matrimonial and foreclosure cases, a common question is - "If we or I have to move, can I still keep my child in the same school?" Recently, in discussions with other counsel, I discovered that a school district may seek payment for a nonresident enrolled in its schools in a court of competent jurisdiction. Here is the leading case:

"Board of Education of the Lawrence Union Free School District, Appellant,
v. Jeremiah C. Gaffney III et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

650 N.Y.S.2d 588, 233 A.D.2d 357 (1996)

November 12, 1996

Mangano, P. J., Bracken, Thompson and McGinity, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

A school district may seek payment for tuition from a non-resident student enrolled in its schools under false pretenses (see, Board of Educ. v Crill, 149 App Div 407), and such an action may be based on Education Law § 3202 or on a cause of action for fraud (see, Board of Educ. v Marsiglia, 182 AD2d 662). Since the plaintiff in the case at bar seeks to recover damages based only on fraudulent inducement, any recovery is limited to that cause of action. The Supreme Court properly denied the plaintiff's motion for partial summary judgment to recover the costs of the tuition for the defendants' children for the period February 1, 1993, through June 30, 1994, since there is a question of fact as to whether the defendants made any false representation to the plaintiff during that period."

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The final aspect about the special instructions and notices that should be noted: although interpreters are available and must be requested for a hearing, an attorney who is not multi-lingual and who represents a Claimant who requires an interpreter must of course use one in preparing for the hearing in order to consult with the Claimant. Usually, this can be done with a family member.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Additional aspects about the special instructions and notices that should be noted: Since this Case No. 4 discussion is about application to reopen, let me just note that rarely have I seen cases adjourned prior to the first hearing and that the usual method (perhaps to clear the calendar) is to issue a default and consider the application to reopen. Of course, once the hearing has commenced and the time for the hearing has expired, the hearing will be adjourned to a new date and time mutually agreeable.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Additional aspects about the special instructions and notices that should be noted: subpoenas are more fully discussed on the Appeal Board regulations:

"Section 460.4. Subpoenas and depositions.

(a)(1) A board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge may issue subpoenas, whenever necessary, to compel the attendance of witnesses and the production of writings, books, contracts, papers, documents or other evidentiary matter. A subpoena duces tecum, unless directed to be issued by a board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge, on his own motion, shall be issued only upon a showing of the necessity therefore by the party applying for its issuance. All of the aforesaid subpoenas shall be issued under the seal of the department.

(2) An attorney who shall have filed with the board a notice of appearance on behalf of any party may issue and cause to be served, subpoenas to compel the attendance of witnesses in accordance with sections 2302 and 2303 of the Civil Practice Law and Rules.

(3) Witnesses subpoenaed for any hearing shall be paid or tendered witness and mileage fees in advance in accordance with the provisions of section 2303 of the Civil Practice Law and Rules of the State of New York.

(4) A motion to quash, fix conditions or modify a subpoena shall be made promptly to the board or to the administrative law judge section to which the subpoena is returnable. A request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made before the board or the administrative law judge. Reasonable conditions may be imposed upon the granting or denial to quash or modify.

(b) A board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge, whenever necessary, shall take or cause to be taken, depositions of witnesses residing within or without the State."

To date. I have not served a subpoena prior to the first hearing for the obvious reason that there is limited discovery (just a review of the file) and it is not until I hear the Employer's testimony and introduction of documents that I can fully understand the Employer's claim.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Additional aspects about the special instructions and notices that should be noted: the previous discussion regarding documents applies to witnesses. I have had hearings where witnesses testified by telephone. Usually, when a witness appears at a hearing, the ALJ will sequester them (seat them outside the hearing office) until they are ready to testify.

UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Additional aspects about the special instructions and notices that should be noted: documents will usually speak louder than words. Many times, the Claimant, during the DOL investigation stage, will omit sending documentation to support their eligibility for benefits and such an omission may be the reason why the Claimant is faced with a hearing. Likewise, the Claimant must be prepared to have the Employer present documents in support of the Employer's claim. There are some hearings where it is basically the Employer testifies that "X happened" and the Claimant will testify "No Y happened" but usually documents will be introduced at hearings (it is a good idea to bring two copies, otherwise the hearing is interrupted by the ALJ making copies for each party) and once again, this highlights the need for Claimants to obtain representation when they first receive a notice of adverse determination or when they receive notice of an employer's request for hearing.