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Decision No. 13,205

Appeal of MARY L. LEMLEY from action of the Board of Education of the Miller Place Union Free School District regarding a vacant position on the board.

Decision No. 13,205

(June 20, 1994)

Neil J. Abelson, Esq., attorney for petitioner

Cahn, Wishod & Lamb, Esqs., attorneys for respondent, Robert H. Cahn, Esq., of counsel

SOBOL, Commissioner.--Petitioner, an unsuccessful candidate for reelection to respondent board of education, seeks an order declaring her the winner of a position on that body. The appeal must be dismissed.

On May 5, 1993, respondent Board of Education of the Miller Place Union Free School District held its annual election. Four candidates sought two positions on the board. Petitioner was a current member of the board seeking election to one of two "at large" positions. The election results were:

Steven Held - 978 votes

Salvatore Cordiale - 881 votes

Mary Lemley - 783 votes

Rose DeTemple - 323 votes

Steven Held and Salvatore Cordiale were declared winners. On July 8, 1993, Mr. Held submitted a letter of resignation to respondent. This appeal ensued.

As a preliminary matter, petitioner raises new issues and offers new allegations and exhibits in her reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). A reply is not meant to buttress allegations contained in the petition or to add assertions or exhibits that should have been in the petition (Appeal of Konkoski, 33 Ed Dept Rep 303; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, I have not considered the new issues, allegations and exhibits included in petitioner's reply.

Petitioner contends that because she received the third highest vote total, she is entitled to be declared the winner of the second board position that was voted on at the May 5th election. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Almedina, 33

Ed Dept Rep 383; Appeal of Cauley, 33 id. 359; Appeal of Singh, 30 id. 284). Petitioner offers no legal basis to support her assertion that she is entitled to be declared the winner of one of the positions voted on at the May 5th election. Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE