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Decision No. 15,395

Appeal of LINDA POLISTIN, on behalf of her daughter TANYA DESIR, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,395

(April 7, 2006)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner purports to appeal an alleged decision by the Board of Education of the Baldwin Union Free School District ("respondent") to deny her daughter, Tanya, admission to its schools. The appeal must be dismissed.

Petitioner commenced an earlier appeal pursuant to Education Law �310 challenging a residency determination by respondent that resulted in a decision of the Commissioner of Education (seeAppeal of Polistin, 45 Ed Dept Rep 103, Decision No. 15,271). Following that decision, petitioner did not attempt to re-enroll her daughter in respondent's schools and respondent has made no new determination concerning petitioner's residency. Accordingly, it appears that petitioner seeks reconsideration of the earlier decision, and as such, this appeal will be treated as an application to reopen Appeal of Polistin, 45 Ed Dept Rep 103, Decision No. 15,271.

Section 276.8 of the Commissioner's regulations governs applications to reopen a prior decision. 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. A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Application to reopen the Appeals of Sitaras, 44 Ed Dept Rep 107, Decision No. 15,112; Application to reopen the Appeal of a Student with a Disability, 42 id. 241, Decision No. 14,839; Application to reopen the Appeal of Osoris, 38 id. 273, Decision No. 14,031). The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (Application of Lockwood, 42 Ed Dept Rep 216, Decision No. 14,828).

The underlying decision was issued on August 5, 2005. Petitioner commenced this proceeding on September 15, 2005, more than 30 days later. Therefore, petitioner's application to reopen the prior decision must be denied.

Even if the application were timely, petitioner has failed to demonstrate that the original decision was rendered under a misapprehension of fact or that there is new or material evidence that was not available at the time the decision was made. Instead, petitioner attempts to argue 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 Lockwood, 42 Ed Dept Rep 216, Decision No. 14,828; Application of Tanzer, 40 id. 229, Decision No. 14,467).

Petitioner retains the right to reapply to the district for admission on Tanya's behalf at any time and to present any new information for respondent's consideration.

THE APPEAL IS DISMISSED AND THE APPLICATION TO REOPEN IS DENIED.

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