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Decision No. 13,461

Application to reopen the Appeal of KOLLAL VARGHESE from action of the Board of Education of the Herricks Union Free School District regarding residency.

Decision No. 13,461

(August 17, 1995)

Joseph Trotti, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Christopher Venator, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner seeks to reopen Appeal of Varghese (34 Ed Dept Rep 455), which dismissed petitioner's appeal of respondent's decision to charge him tuition for the education of his three children during the months of September, October and November 1994. This application must also be dismissed.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen.

This application must be dismissed because it is untimely. The original decision was dated March 23, 1995, and this application was not brought until May 8, 1995. The petition does not state the reason for its lateness or any other facts that would allow me to exercise my discretion to excuse its untimeliness.

The application must also be dismissed on the merits. I find no misapprehension of fact in the original decision. Nor do I find any new and material evidence which was not available at the time the decision was made. Petitioner asserts that while he purchased a house in respondent's district on September 2, 1994, he failed to occupy the house immediately because the current owners were too medically frail to vacate their home at that time. This fact is not new. It was known at the time of the original petition. Even if it were not, it would not provide a basis to reopen this matter.

The balance of the application is an attempt to reargue the original decision. However, 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; Application of Burke, 28 id. 205).

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPLICATION TO REOPEN IS DENIED.

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