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Decision No. 14,828

Application to reopen the APPEAL OF CYNTHIA LOCKWOOD, on behalf of her son ROBERT JOHNSON, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 14,828

(December 24, 2002)

Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of Cynthia Lockwood, 42 Ed Dept Rep __, Decision No. 14,763, regarding a residency determination by the Board of Education of the Cleveland Hill Union Free School District ("respondent"). The application must be denied.

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 that was not available at the time the decision was made. The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (Application of Satler, 41 Ed Dept Rep ___, Decision No. 14,690).

Petitioner"s application is untimely. The underlying decision was issued on July 24, 2002 and petitioner commenced this proceeding on August 28, 2002, more than 30 days later. Therefore, the application must be denied.

The application must also be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a statement of facts that no longer exists or which subsequent events have laid to rest (Appeal of Doro, 41 Ed Dept Rep ___, Decision No. 14,596; Appeal of K.M., 39 id. 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). Respondent states that, subsequent to my July 24, 2002 decision, it admitted petitioner"s son to the district"s schools based on additional documents submitted by petitioner, establishing her marriage in May 2002 to George Prewitt, who purchased a residence within the district in April 2002. On the basis of these documents, respondent has permitted Robert to attend its schools tuition free, during the 2002-2003 school year. Therefore, petitioner"s request for a determination that her son is a resident of the Cleveland Hill Union Free School District and entitled to attend school there without the payment of tuition, has already been satisfied.

Moreover, petitioner fails to demonstrate that the additional documents submitted to respondent in September 2002 were not available at the time the decision was made or that the decision was rendered under a misapprehension of the facts. Instead, petitioner attempts to reargue the merits of the original appeal. Mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application of Satler, supra; Application of Tanzer, 40 id. 229, Decision No. 14,467.