Decision No. 13,810

(August 6, 1997)

CATE, Acting Commissioner.--Petitioner seeks to reopen Appeal of Corcoran (36 Ed Dept Rep 324), in which Commissioner Mills dismissed petitioner's appeal of respondent's refusal to modify the transportation arrangements provided for her son. Petitioner asks that I reopen the matter and allow her to withdraw her petition in the first appeal.

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.

The original appeal was commenced on October 15, 1996, and respondent's answer was served on November 6, 1996. According to the petition for reopening, on November 7, 1996, before the answer was received by my Office of Counsel, " . . . . the parties resolved the issue of the lengthy bus run and came up with a solution." Petitioner further alleges that she never received a copy of respondent's answer in the original appeal, although an affidavit of service, proper in form, was filed.

Respondent school district has not served an answer in this application for reopening.

Under these unusual circumstances, I will reopen the original appeal and permit withdrawal of the petition in that matter. If there was any misapprehension as to the facts in the first appeal, it was caused directly by the failure of both petitioner and counsel for respondent to inform my Office of Counsel that they had reached an agreement and that a decision was unnecessary. While I fault petitioner for failing to bring this settlement to the Commissioner's attention, I find that respondent's counsel, a law firm experienced in such matters, was even more at fault. Although no answer has been filed herein, I caution respondent's counsel to advise me whenever a matter has become moot. Time and effort was spent on the original appeal needlessly.

THE APPLICATION IS GRANTED.

IT IS ORDERED that the decision set forth in Appeal of Corcoran, 36 Ed Dept Rep 324, Decision No. 13,737, dated February 21, 1997, is annulled, and the petition therein is withdrawn with prejudice.

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