Decision No. 13,078

(December 31, 1993)

Bennett, Pape, Rice & Schure, Esqs., attorneys for petitioner, Richard J. Schure, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals a determination made by a State Education Department official with respect to its off-campus educational activities. The appeal must be dismissed.

Petitioner is a private college located in Rockville Centre, New York. From September 1987 through June 1993, petitioner provided a program of off-campus instruction in addition to its on-campus program.

On September 30, 1993, following a lengthy review of documents and correspondence, Deputy Commissioner Donald Nolan, an employee of the State Education Department, issued a determination concerning petitioner's off-campus instruction. After reviewing the differences in format and content of courses offered in the off-campus and on-campus programs, the nature, status, and evaluation of faculty offering the two programs, the numbers of credits required to complete the two programs and other factors, the Deputy Commissioner stated: "I must conclude, therefore, that the program which Molloy was offering at off-campus locations is not the A. A. program in Liberal Arts which was registered by this Department."

Molloy appeals Dr. Nolan's decision to me, protesting what it characterizes as a retroactive determination which will have financial consequences to it, and arguing that the determination is the equivalent of a failure to register a new program or to re-register an existing program, giving it rights of review under 8 NYCRR Part 52.

The appeal must be dismissed. As noted above, petitioner is challenging a determination made by Deputy Commissioner Nolan, an employee of the State Education Department. It is well settled that Education Law '310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Matter of the Board of Education of the City School District of the City of Rome, 23 Ed Dept Rep 382, aff'd sub nom.Board of Ed., Rome CSD v. Ambach and Polizzi, 118 AD2d 932; Matter of Board of Education of the City School District of the City of New York, 19 Ed Dept Rep 1; Matter of Baker, et al., 11 id. 125; Matter of Vezzani, et ux., 11 id. 35; Matter of Bowen, et al., 1 id. 534, aff'd sub nom.Bowen et al. v. Allen, 29 Misc 2d 35, rev'd 17 AD2d 12, aff'd 13 NY2d 663). Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

THE APPEAL IS DISMISSED.

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