DIVORCE, VENUE AND TWO "RESIDENCES"

 

Fisch v. Davidson, 2022 NY Slip Op 1442 - NY: Appellate Div., 2nd Dept. 2022:

"LASALLE, P.J.

Introduction

The parties to this divorce action primarily resided in New York County, while maintaining a seasonal second home in Suffolk County. In March 2020, when the COVID-19 pandemic first reached New York City, the defendant retreated to the Suffolk County residence along with her pregnant and immunocompromised daughter and began spending more time there in order to assist the daughter during the pregnancy and after the child's birth. In August 2020, the plaintiff commenced this action for a divorce and ancillary relief in Suffolk County, on the ground that the parties were residents of Suffolk County. The defendant moved pursuant to CPLR 510 and 511 for a change of venue, and the Supreme Court denied the motion.

This case presents the issue of whether sheltering in place in a seasonal home creates a sufficient degree of permanence to establish residency at that location. We hold that it does not under the circumstances of this case. Because the parties' stays in Suffolk County were only seasonal and temporary, we hold that neither of them were residents of Suffolk County at the time of the commencement of the action. Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County.

Factual and Procedural Background

The parties met while attending Columbia Law School and were married in 1985. After graduating law school, they moved to New Jersey, where they raised their three daughters. The defendant ultimately became a Superior Court Judge in Newark, while the plaintiff is a real estate developer with an office in Manhattan as well as a trustee of the Metropolitan Museum of Art and the chairman of that museum's Acquisitions Committee.

Beginning in the late 1990s, the parties rented an apartment on the Upper West Side as a pied-a-terre. In 2010, the parties purchased an apartment at the Beresford, located at 81st Street and Central Park West in Manhattan. After the parties' youngest daughter graduated high school in 2011 and after the defendant retired in 2013, the parties spent increasing amounts of time at the Beresford and less time at their New Jersey residence. Beginning in 2014, the parties filed tax returns showing that they resided in New York City and paid New York City income taxes. In 2014, the parties contracted to buy a second apartment at the Beresford, with the plan of combining the two units into one large duplex apartment, measuring more than 4,700 square feet, with four bedrooms. The cost of that renovation is projected to be more than $8 million. The contract called for title to the second apartment to transfer upon the death of the owner of the second apartment, and the parties closed on the second apartment in 2018. According to the defendant, after the parties separated in April 2019, the plaintiff began renting an apartment near East 79th Street and Fifth Avenue in Manhattan. The parties sold their New Jersey residence in 2020. The entirety of the parties' collection of Old Master paintings, insured at $177 million, hangs at the Beresford apartment or the plaintiff's apartment in New York City, except for one painting that has been consigned for auction.

Meanwhile, in 2012, the parties purchased property in Southampton. In 2016, the parties demolished the existing house on the property and built a new house that cost more than $4 million. During a portion of the construction, the parties rented another house in Southampton. According to the defendant, the parties only used the Southampton house for summer weekends, with limited exceptions. The defendant explained:

"For most summers beginning in 2013, some combination of [the plaintiff], [the defendant], and our three daughters would use the house on weekends. Some weekends the kids went without us. For example, [the plaintiff] always traveled to London for Old Master Week in early July. Some summers, the family used the house less often. In 2016 we did construction on the house and took a summer rental, which I hardly saw as I spent most of that summer in Los Angeles taking care of my father, who had suffered a stroke. In July 2017 our oldest daughter had surgery, resulting in missed weekends. In the summer of 2018, one of our daughters got married and my father suffered another stroke, so again the house was used less often. Until our separation, the only time [the plaintiff] and I stayed in the Southampton house outside of the summer season was a few days over the Christmas holiday break in 2018."

When the COVID-19 pandemic reached New York in March 2020, the defendant and the parties' oldest daughter, Elizabeth, retreated to the Southampton house from their respective apartments in Manhattan. According to the defendant:

"Elizabeth was pregnant with her first child — our first grandchild — and is immunocompromised due to a medication she takes to treat Crohn's disease. She and I and her husband felt that staying in the house would be safer for her — and, ultimately, for the baby after his birth because he would also be immunocompromised for his first six months until her medication was out of his system — than remaining in the City. Her husband had been exposed to family members of his who had contracted Covid-19, so after he quarantined for three weeks in their Manhattan apartment, he joined us at the Southampton house. I then left the Southampton house on April 5, and except for spending our last Passover holiday with my other children in our New Jersey home (which has since sold), I remained in my Manhattan apartment from April 5 until May 28, when I returned to Southampton to help Elizabeth who was then in the late stages of pregnancy. Throughout, Elizabeth drove back to Manhattan for all of her doctors' appointments between March and the birth in June.

* * *

"When our daughter went into labor on June 11, I drove her and her husband to Manhattan, where she gave birth. I returned to my New York City apartment and was in the City to help her after the baby was born. I stayed in New York City for about a week and a half. Later, we all returned to Southampton, where our other two daughters and their husbands, having completed a strict two-week quarantine, joined us.

"Despite [the plaintiff's] knowingly false claim that I reside in Southampton, my stay here is so impermanent that [the plaintiff] has thought nothing of booting me out at will. On July 26, [the plaintiff] announced by text that he would be coming to the Southampton house for a week from September 9 through 16. He understood that, in addition to my leaving, my oldest daughter, her husband, their baby, my youngest daughter and her husband would also all have to leave in order to avoid being exposed to him."

On August 11, 2020, the plaintiff commenced this action against the defendant in the Supreme Court, Suffolk County. In the complaint, the plaintiff sought a judgment of divorce that declared the separate property of the parties, equitably distributed the marital assets and debt, and awarded the Southampton house to the plaintiff. On or about September 2, 2020, the defendant served a demand to change the venue of the action to New York County on the ground that Suffolk County was an improper venue.

By notice of motion dated September 10, 2020, the defendant moved pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County. The defendant contended that Suffolk County was an improper venue because the parties' primary, permanent residence was in New York County and that although the parties owned a summer house in Southampton, neither party resided there on the date of the commencement of the action with the requisite degree of permanence. The defendant further contended that Suffolk County would be inconvenient for the testifying witnesses in the case, as none of the witnesses lived in Suffolk County and the assets themselves, except for the vacation house, were all located elsewhere.

The plaintiff opposed the defendant's motion, arguing that the parties did reside at the house in Southampton and that the defendant failed to demonstrate that the convenience of material witnesses and the ends of justice would be promoted by a change in venue to New York County.

The Supreme Court denied the defendant's motion to change the venue of the action from Suffolk County to New York County. The court concluded that Suffolk County was a proper venue pursuant to CPLR 503(a) and 510(1) because the defendant was a resident of Suffolk County. The court further concluded that the defendant did not establish her entitlement to a discretionary change of venue pursuant to CPLR 510(3) because she failed to demonstrate that the convenience of material witnesses and the ends of justice would be promoted by the change. The defendant appeals.

Analysis

CPLR 510(1) provides that the court, upon motion, may change the place of trial of an action where "the county designated for that purpose is not a proper county." CPLR 503(a) provides that except where otherwise prescribed by law, "the place of trial shall be in the county in which one of the parties resided when it was commenced" (emphasis added).

The requirement that the venue of an action shall be predicated on where a party resided when the action was commenced has been present in the CPLR and its predecessor statute for more than 100 years (see Civ Prac Act § 182). However, the term "resided" has never been defined in those statutes. Accordingly, courts applying the statutes have applied the common-law definition of "resided," which has developed over time on a case-by-case basis (see e.g. Katz v Siroty, 62 AD2d 1011, 1012; Hammerman v Louis Watch Co., 7 AD2d 817, 818).

The leading Court of Appeals case on the issue of the meaning of "reside" is Yaniveth R. v LTD Realty Co. (27 NY3d 186), which involved a New York City ordinance requiring landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under "reside[d]" (id. at 191 [internal quotation marks omitted]). In that case, the Court of Appeals concluded that a child who did not live in the subject apartment but spent approximately 50 hours per week there with a caregiver did not "reside" in the apartment (see id. at 194). In doing so, the Court of Appeals reviewed, among other things, venue cases interpreting CPLR 503(a) and its predecessor, and synthesized from them the following definition of "residence":

"[r]esidence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile. . . . [A] person's `residence' entails something more than temporary or physical presence, with some degree of permanence and [an] intention to remain. Thus, [a]lthough it is true that a person may have more than one residence[,] . . . to consider a place as such, he [or she] must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency" (id. at 193 [emphasis, citations, and internal quotation marks omitted]; see Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708; Matter of Newcomb, 192 NY 238; Kelly v Karsenty, 117 AD3d 912).

This Court has held that "[r]esidence requires more stability than a brief sojourn for business, social or recreational activities" (Katz v Siroty, 62 AD2d at 1012). Thus, in Doe v Hall (36 AD3d 651), this Court held that the affidavit of the plaintiff's son, who stated that at the time of the commencement of the action the plaintiff maintained a residence at her son's apartment in Queens County and would "reside" there when she came back to Queens County during holidays and other times, was insufficient to establish that the plaintiff resided in Queens County at the time the action was commenced (id. at 652 [internal quotation marks omitted]). Similarly, in Stern v Epstein (29 AD3d 778), this Court held that the plaintiffs' use of their medical office in Kings County to sleep over for convenience a couple of nights a week did not render them residents of Kings County for venue purposes (see id. at 779). And in Katz v Siroty (62 AD2d 1011), the plaintiff, whose primary residence was in Scarsdale, retained the exclusive use of a bedroom in his sister and brother-in-law's home in Brooklyn, where he slept between 50 and 100 times per year when he visited his Manhattan law office or when he had to see people in localities such as Patchogue, Long Island (see id. at 1011-1012). This Court concluded that the plaintiff's "occasional use of a bedroom in his sister and brother-in-law's home when he transacts business in the New York metropolitan area does not support his contention that he has a second residence in Brooklyn" (id. at 1012).

By contrast, in Kelly v Karsenty (117 AD3d 912), this Court held that the plaintiff established that he had a bona fide intent to establish an additional residence in Queens with some degree of permanency by submitting a copy of a three-year lease for a cooperative apartment in Queens, which recited that the apartment was to be occupied by the plaintiff, along with several documents listing the apartment in Queens as his address, including a New York State tax bill, a bank account statement, and a union membership card (see id. at 912-913).

This case presents two issues relating to the parties' residence: (1) whether the parties' seasonal use of the Southampton house on weekends prior to March 2020 made them residents of Suffolk County; and (2) whether the defendant's retreat to the Southampton house at the outset of the COVID-19 pandemic made her a resident of Suffolk County. We conclude that neither of these things made the parties residents of Suffolk County.

The defendant clearly established that the parties primarily resided in New York County. The defendant submitted, among other things, copies of: the parties' income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the defendant's voter registration showing that she was registered to vote in New York County; the defendant's driver license listing her address in New York County; motor vehicle records showing that the parties' cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the plaintiff to the parties' art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the Beresford apartment and the plaintiff's Manhattan office as the parties' addresses.

Although a person may have more than one residence, as in, for example, "a joint custody situation or other shared living arrangement" (Yaniveth R. v LTD Realty Co., 27 NY3d at 194), contrary to the plaintiff's contention, the defendant demonstrated that neither party resided in Suffolk County at the time of the commencement of the action.

With respect to the parties' use of the Southampton house prior to 2020, as the defendant notes, a highly instructive case is Daley v Daley (257 AD2d 593). In that case, the plaintiff moved out of the marital residence on Roosevelt Island and into another apartment in Manhattan, and commenced an action for a divorce in New York County (see id.). The Supreme Court, New York County, granted the defendant temporary exclusive occupancy of the marital residence, and the plaintiff was granted temporary exclusive occupancy of a house in Cutchogue, Long Island, which was previously used by the parties during the summer (see id. at 594). The plaintiff later served a notice discontinuing the New York County action and, immediately thereafter, he commenced a new action for a divorce in Suffolk County (see id.). The defendant moved to change the venue of the action to New York County, and this Court affirmed the grant of that motion, explaining that the plaintiff

"did not provide documentary evidence to support his claim regarding the permanent nature of his residence in Cutchogue, and he admitted that he `frequently' resided in the Manhattan apartment during the work week. Moreover, we note that the plaintiff seeks exclusive occupancy of the marital residence on Roosevelt Island in this action. The defendant offered documentary evidence to support her contention that the Cutchogue residence was seasonal in nature and that the defendant continued to reside in Manhattan" (id.).

This Court further stated that "[i]n addition to the plaintiff's failure to establish that Suffolk County was his residence for venue purposes, we agree with the Supreme Court that the plaintiff's tactic in discontinuing the previous action and commencing this action in Suffolk County amounted to forum shopping" (id. at 594-595).

The plaintiff contends that Daley "is neither `Second Department authority' nor does it hold that a seasonal residence is not a basis for venue" because: (1) it has never been cited on the issue of whether a seasonal home is a basis for venue; and (2) it is distinguishable from this case because "the overriding issue in Daley was the husband's bad faith tactics and attempts to forum shop." Notwithstanding the fact that Daley has not been subsequently cited for the proposition that a seasonal residence is not a basis for venue, that case did in fact hold a seasonal residence was not sufficient to establish a party's residency for venue purposes, at least where the party frequently resided in another location during the workweek (see id. at 594). And while this Court in Daley cited the plaintiff's bad faith tactics and attempts to forum shop, this Court indicated that this was an additional, independent ground for granting the defendant's motion to change venue that was separate from its primary conclusion that the plaintiff failed to establish that Suffolk County was his residence. This Court stated that "[i]n addition to the plaintiff's failure to establish that Suffolk County was his residence for venue purposes, we agree with the Supreme Court that the plaintiff's tactic in discontinuing the previous action and commencing this action in Suffolk County amounted to forum shopping" (id. at 594-595 [emphasis added]).

Here, in her affidavit submitted in support of her motion, the defendant averred that prior to 2020, the Southampton house was only used by the parties on weekends in the summertime, with limited exceptions, and that the only time the parties stayed in the Southampton house outside of the summer season was a few days over the Christmas holiday break in 2018. The plaintiff's affirmation submitted in opposition to the motion does not contain anything disputing these averments. The plaintiff stated in that affirmation that "[f]rom 2012 until we separated, we split our time between our residences in New Jersey, Manhattan, and Southampton. We used the Southampton Residence during summers and on other occasions. We have used it extensively in every year since we purchased it." Since it is undisputed that, prior to 2020, the parties only stayed in the Southampton house on weekends in the summer, with limited exceptions, contrary to the plaintiff's contention, neither party resided in Suffolk County at any time prior to 2020 (see id. at 594; see also Doe v Hall, 36 AD3d at 652; Stern v Epstein, 29 AD3d at 779; Katz v Siroty, 62 AD2d at 1011-1012).

Further, contrary to the Supreme Court's conclusion, the time the defendant spent in the Southampton house in 2020 during the COVID-19 pandemic was not enough to make her a resident of Suffolk County. In Morreale v 105 Page Homeowners Assn., Inc. (64 AD3d 689), the relevant testimony revealed that on or about December 31, 2005, the plaintiff moved to her son's apartment in Brooklyn from her house in Staten Island after a "diabetic episode," in March or April 2006, she entered into a contract to purchase a house in New Jersey, and on August 8, 2006, three days after commencing the subject action, she "took over" her new house in New Jersey, which she moved into in November 2006 (id. at 690 [internal quotation marks omitted]). This Court concluded that the appellants demonstrated that the plaintiff was only temporarily staying at the Brooklyn apartment at the time she commenced the action without the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency (see id.). Similarly, in Ray-Ollenu v Kaufman Mgt. Co. (107 AD3d 476), the Appellate Division, First Department, concluded that the evidence in the record did not demonstrate the plaintiff's intent to reside in Bronx County with some degree of permanency because it showed only that the plaintiff stayed with her mother in Bronx County for a brief period of time while she was having marital problems with her husband. Finally, in Sibrizzi v Mount Tom Day School (155 AD2d 337), the First Department concluded that the plaintiffs' occupancy of a relative's home in the Bronx while their Westchester County home was being renovated indicated a lack of intent to remain in the Bronx (see id. at 338).

Here, although the defendant retreated to the Southampton house in March 2020, it is undisputed that the defendant planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID-19 pandemic was at its zenith in New York City. Under the circumstances of this case, the defendant did not "have the bona fide intent to retain [Suffolk County] as a residence with at least some degree of permanency" (Yaniveth R. v LTD Realty Co., 27 NY3d at 193 [internal quotation marks omitted]; see Morreale v 105 Page Homeowners Assn., Inc., 64 AD3d at 690; see also Ray-Ollenu v Kaufman Mgt. Co., 107 AD3d 476; Sibrizzi v Mount Tom Day School, 155 AD2d at 338).

Accordingly, because Suffolk County was not a proper venue, the Supreme Court should have granted the defendant's motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County. In light of our determination, we need not reach the issue of whether the defendant established her entitlement to a discretionary change of venue pursuant to CPLR 510(3) on the ground that the convenience of material witnesses and the ends of justice would be promoted by such a change.

Conclusion

For the foregoing reasons, the order is reversed, on the law, the defendant's motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County is granted, and the Clerk of the Supreme Court, Suffolk County, is directed to deliver to the Clerk of the Supreme Court, New York County, all papers filed in this action and certified copies of all minutes and entries (see id. § 511[d]).

CONNOLLY, IANNACCI and WOOTEN, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County is granted, and the Clerk of the Supreme Court, Suffolk County, is directed to deliver to the Clerk of the Supreme Court, New York County, all papers filed in this action and certified copies of all minutes and entries (see id. § 511[d])."

TWO YEAR RESIDENCY AND NO-FAULT DIVORCE

Domestic Relations Law § 230 requires that one of the parties reside continuously in New York State for two years, or continuously for one year if other conditions are met including that the “cause of action occurred in the state.” At least one trial level court has held that the ground of irretrievable breakdown of the marriage cannot be considered a cause that occurred in the state.

Stancil v Stancil 2015 NY Slip Op 25045 Decided on February 17, 2015 Supreme Court, New York County:

"Each year, matrimonial courts in this state assist thousands of unhappily married couples resolve the painfully difficult issues involving their children and the complicated issues involving their finances. It is never the goal to make the process more time-consuming and costly. The court readily admits that this decision may cause hardship for plaintiff, who may very well now have to commence two actions: a custody petition brought in either this court or New York Family Court to determine non-financial issues concerning the child, who has lived here for more than the requisite six months (DRL § 76), and an action for divorce brought in South Carolina or Virginia, states which likely have the ability to grant plaintiff a divorce and determine all ancillary financial issues....

Oliver Wendell Holmes famously wrote "hard cases make bad law." Bearing that adage in mind, this court cannot make bad law simply to avoid hardship to plaintiff. In spite of the difficulties that she will encounter as a result of this divorce action being dismissed, permitting the case to go forward would be making a legal determination that would render the two year residency requirement meaningless. While it is this court's view that the no-fault divorce statute has brought immeasurable value to the citizens of this state and to its courts, if the legislature intends to lower the residency requirement to one year where the irretrievable breakdown ground is pled, it will have to say so. Absent this, it must be concluded that plaintiff is required to reside in New York State for two years prior to the commencement of the divorce. Because she has not, the durational residency requirement is not satisfied and this divorce action must be dismissed."

WHERE DOES CHILD RESIDE FOR PURPOSES OF NYC LEAD PAINT LAW

In a child custody/support case, support is paid to the parent who has primary residential custody and the courts, at least those which follow the First Department, usually determine that based solely on the actual amount of overnights that the child spends with each party. See e.g. Joseph M. v. LAUREN J., 2014 NY Slip Op 51536 - NY: Supreme Court 2014

So will a different test apply with respect to statutes that have different purposes? In YANIVETH R. v. LTD Realty Co., 2016 NY Slip Op 2550 - NY: Court of Appeals 2016 the court was faced with the following question:

"New York City adopted lead abatement legislation in 1982 that imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under resides (see Administrative Code of the City of NY former § 27-2013[h][1] ["Local Law 1"]). The issue in this case is whether a child "reside[s]" in an apartment containing lead-based paint, thereby triggering a landlord's duty under Local Law 1, when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver."

The court said clearly the child is not a resident of the caregiver but Judge Fahey in dissent noted:

"The intent of Local Law 1 is obvious: its enactors sought to shield young children, that is, those who cannot protect themselves, from the dangers of lead-based paint poisoning. The will of a legislative body is discernable from its diction (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 602 [1999]), and the use of the word "reside" in Local Law 1 signals a desire to protect young children who may be exposed to lead-based paint in more than one location. To conclude otherwise would be to say that a child — any person, in fact — may reside in only one place. The majority opinion eliminates the distinction between "residence" and "domicile" established in Newcomb (192 NY at 250). It effectively means that a child may have only one "residence."

The impact of today's decision transcends this case.

It threatens the ability of those young children who are covered by Local Law 1 and who were subject to either a joint custody agreement or a comparable shared living arrangement at the time of their exposure to lead-based paint to recover damages for their resultant injuries. It threatens the ability of children who are covered by the successor to Local Law 1 (see Administrative Code § 27-2056.1 et seq.) and who are subject to similar living arrangements to recover damages for the same harm. It also beseeches a legislative response."

NON-RESIDENT NEW YORK ATTORNEYS MUST HAVE OFFICE IN NEW YORK

New York law requires attorneys who practice in the state but live elsewhere to maintain physical office space in New York. The decision of the Court of Appeals can be found at this link:

https://www.nycourts.gov/ctapps/Decisions/2015/Mar15/39opn15-Decision.pdf

UNDOCUMENTED CHILD AND SCHOOL

I had a consultation on this yesterday at the pro bono fair:

1. This is the problem:

http://www.nytimes.com/2014/10/22/nyregion/rules-and-paperwork-keep-long-islands-immigrant-children-from-classroom.html?_r=0

2: This is the current action the state education department and AG office is taking:

http://www.longislandpress.com/2014/10/23/ag-to-review-districts-undocumented-student-enrollment-policies/

But what should a parent do at the moment if the school does not accept the child due to lack of residency documentation? First, it is suggested for the parent to contact his/her church to see if they can range some temporary education. Next, documents can be created to establish residency, viz., affidavit of residency, to satisfy the school until this issue is resolved. If the school does not accept, appeal to the commissioner:'

http://www.counsel.nysed.gov/appeals

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.

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.

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