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Decision No. 15,112

 

Application to reopen the Appeals of FATHER CONSTANTINE L. SITARAS and SAINT BASIL ACADEMY, on behalf of E.M., S.M., and A.P., et al., from action of the Board of Education of the Garrison Union Free School District regarding residency.

 

(September 1, 2004)

 

Michael K. Lambert, Esq., attorney for petitioners

 

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Daniel Petigrow, Esq., of counsel

 

Respondent Board of Education of the Garrison Union Free School District seeks to reopen Appeals of Sitaras, et al. (43 Ed Dept Rep    , Decision No. 15,044) which, in a consolidated decision, sustained in part a challenge by St. Basil Academy (�St. Basil�) and its Executive Director, Father Constantine Sitaras (�petitioners�) to respondent�s determination that 26 students residing at St. Basil are not district residents.  The application must be denied.

Section 276.8 of the Commissioner�s regulations 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.

In the underlying appeal, I found, among other things, that although petitioners failed to establish that the children at issue were district residents, those children who have a parent or guardian residing in New York State are entitled, pursuant to Education Law �3202(6), to attend school in respondent�s district on a tuition basis at the expense of the child�s school district of residence or responsible social services district.

Respondent alleges that my determination that Education Law �3202(6) governs is based on a misapprehension of fact.  Specifically, respondent contends that St. Basil is not covered by Education Law �3202(6) because it operates a private boarding school.  Respondent submits a number of documents to support this contention.  Respondent also asserts that because it operates only a kindergarten through grade eight (K-8) school, it cannot �receive� high school age children pursuant to Education Law �3202(6).  Finally, respondent contends that it was not given the opportunity, as provided in Education Law �3202(6), to establish that it has valid and sufficient reasons for refusing to receive the St. Basil children for instruction in its schools.  Respondent therefore attempts to do so in this application for reopening.

The application must be dismissed. I find no misapprehension of fact in the original decision, nor do I find any new and material evidence that was not available at the time of the original decision.  Contrary to respondent�s assertions, the record establishes that, although St. Basil is chartered to operate a boarding school, it has not done so since 1997.  Moreover, respondent has failed to establish that any of the information it seeks to submit was unavailable at the time I rendered my determination.

A reopening may not be used to augment previously undeveloped factual assertions and arguments or to advance new legal arguments (Application to reopen Appeal of Osoris, 38 Ed Dept Rep 273, Decision No. 14,031; Application to reopen the Appeal of the Bd. of Educ. of the Longwood Cent. School Dist., 36 id. 245, Decision No. 13,714; Application to reopen the Appeal of a Student with a Disability, 33 id. 659, Decision No. 13,185).  Accordingly, I will not address respondent�s claim that it cannot �receive� high school children because it only operates a K-8 school, a fact explicitly acknowledged in my decision.  Similarly, I will not address respondent�s new legal argument that it has �valid and sufficient reasons� to refuse to receive the St. Basil children in its schools under Education Law �3202[6].

 

THE APPLICATION IS DENIED.

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