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Decision No. 13,334

Application to reopen the Appeal of BARBE MAXWELL from action of the Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County regarding employment.

Decision No. 13,334

(January 23, 1995)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen Appeal of Maxwell, 34 Ed Dept Rep 45, in which I refused to direct the Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County ("respondent") to remove a document from petitioner's personnel file or employ her in its daytime adult education program. This application must likewise be denied.

In the original appeal, petitioner contended that she was entitled to the relief described above, but failed to offer any legal basis to support her claims. The appeal was therefore dismissed for failure to state a cause of action upon which relief could be granted. The appeal was also dismissed on procedural grounds as untimely.

I now deny petitioner's application to reopen because she has not demonstrated sufficient grounds to warrant such relief. Under 8 NYCRR 276.8, applications to reopen are addressed solely to the discretion of the Commissioner. Such applications will not be granted in the absence of a showing that a decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time of the original decision.

Petitioner does not present any new and material evidence which was not available at the time of the original decision. Moreover, while petitioner contends that the decision was rendered under a misapprehension of fact, she points to no such misapprehension, instead rearguing the issues presented in the original appeal. An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Bach, 34 Ed Dept Rep 18; Application of Maloney, 33 id. 391; Application of Impellizzeri, 32 id. 295). Because of the absence of new facts or proof that the original decision was premised upon a misapprehension of fact, this application must be denied.

THE APPLICATION TO REOPEN IS DENIED.

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