Decision No. 12,566

(August 19, 1991)

SOBOL, Commissioner.--Petitioner Hebrew Institute for the Deaf and Exceptional Children seeks to recover monies from respondent New York City Board of Education for the tuition and transportation of children with handicapping conditions pursuant to Education Law '4410. The appeal must be dismissed.

Petitioner is an educational corporation chartered by the University of the State of New York which is authorized to receive public funds for the education of preschool children with handicapping conditions. On November 17, 1989, petitioner filed vouchers seeking payment for the education of children with handicapping conditions with the New York City Board of Education. The vouchers reflected services from July 1989 through November 1989 for a total amount of $528,025.00. On November 29, 1989, 12 days after submitting vouchers to respondent, petitioner commenced this proceeding for an order directing respondent to pay for the services reflected in the vouchers.

Respondent admits that petitioner filed vouchers on November 17, 1989, and at no time has denied the validity of petitioner's submissions for payments for services. Respondent contends it was notified on September 22, 1989, that interim tuition rates had been approved by the State Education Department for petitioner's preschool for the 1989-90 school year and that petitioner's interim contract was approved by the State Education Department on November 17, 1989. Respondent further maintains that petitioner and respondent executed the interim agreement on or about December 2, 1989, reflecting the tuition rates, and that respondent issued the first payment to petitioner on December 5, 1989, for $84,000.00. Respondent issued its second payment for tuition on December 27, 1989, for $145,485.00.

Respondent further states that a final contract for the provision of special programs and services for preschool children with handicapping conditions was approved by the State Education Department on January 2, 1990, and was executed by petitioner and respondent on January 10, 1990. Respondent further contends that it had not paid transportation costs at the time the petition was filed because transportation rates had not yet been agreed upon.

Respondent argues primarily that until petitioner and respondent entered into a final contract on January 10, 1990, petitioner had no rights to any payments other than those payments for eligible children made by respondents under the interim contract. Thus, according to respondent, petitioner's proceeding is premature.

Petitioner, in its reply, contends that respondent should have commenced making interim payments starting in July 1989. In addition, petitioner alleged that there were additional amounts owing for the months of December 1989 and January 1990. Petitioner also objected to respondent's untimely answer.

Respondent submitted additional papers in February indicating that the total amount of tuition payments made to petitioner was $643,367.00. In addition, on October 2, 1990, my Office of Counsel directed the parties to submit additional affidavits indicating the amount of outstanding monies, if any, that are currently owed to petitioner for services rendered pursuant to Education Law '4410 during the 1989-1990 school year, including costs associated with transportation. Petitioner submitted papers indicating that it is owed the sum of $405,093.15 on a "rate appeal" for 1989-90. Petitioner also repeated its previously alleged claims for interest and attorneys' fees.

Respondent's papers indicate that petitioner has been reimbursed for all services rendered pursuant to Education Law '4410 during the 1989-90 school year and object to petitioner's inclusion of the rate appeal issue, which respondent alleges, upon information and belief, is the subject of a separate proceeding in another forum. Petitioner responded that such "rate appeal" information was introduced to support its claims for attorneys' fees.

With respect to the amount due and owing petitioner for services rendered pursuant to '4410, the documents filed by both parties in response to the inquiry from my Office of Counsel indicate that respondent has paid to petitioner the amounts alleged in the petition as well as the 1989-90 tuition and transportation costs incurred during the pendency of this appeal. Accordingly, the issue of payment is moot and I need not determine whether respondent was obligated to pay transportation costs prior to an executed contract by the parties (Application of a Child with a Handicapping Condition, 30 id. 122; Appeal of Bahret, 30 id. 161; Appeal of Lupano, 30 id. 266).

Because of the possibility of future appeals with respect to respondent's timely payment of vouchers, I will address this issue. Petitioner argues that respondent should have paid petitioner monies starting in July 1989. The record indicates that petitioner submitted its vouchers to respondent for the first time in November 17, 1989, and commenced this proceeding on November 29, 1989. Without addressing the length of time it took respondent to negotiate a contract with petitioner, I note that '4410(11) provides that approved costs for a preschool child who receives services pursuant to '4410 shall be paid by the appropriate governing body or officer of the municipality upon vouchers presented and audited. Therefore, respondent's obligation to pay petitioner could not have accrued prior to November 17, 1989, and petitioner's commencement of this appeal only 12 days later hardly allowed respondent to adequately review the vouchers.

In addition to its claims for reimbursement, petitioner urges that it is entitled to both interest and attorneys' fees. Neither is recoverable in a '310 appeal, however (Matter of Specht, 20 Ed Dept Rep 457; Matter of Hilferly, 23 id. 53; Application of a Child with a Handicapping Condition, 28 id.498). To the extent that a party is entitled to attorneys' fees, the claim must be brought in a state or federal court (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 498).

Petitioner's allegations with respect to the rate appeal are confusing, but they appear to have been submitted to buttress petitioner's argument for attorneys' fees and interest which are not recoverable here. The substantive issue of monies due to petitioner pursuant to a rate appeal is not before me.

In light of my determination that this appeal is moot and that the issues concerning interest and attorneys' fees are not properly before me, petitioner's procedural objections need not be addressed.

THE APPEAL IS DISMISSED.

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