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Decision No. 16,024

Application to reopen the Appeal of JENNIFER MILLS, on behalf of her son DUSTIN, from action of the Board of Education of the Pocantico Hills Central School District regarding transportation.

Decision No. 16,024

(February 6, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Ethan D. Balsam, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks to reopen the Appeal of Mills, 49 Ed Dept Rep ____, Decision No. 15,988, which dismissed petitioner’s challenge to the determination of the Board of Education of the Pocantico Hills Central School District (“respondent”) denying her son, Dustin, transportation to a nonpublic school.  The application must be denied.

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 (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395; Application to reopen the Appeal of Johnson, 45 id. 275, Decision No. 15,320).

In the underlying appeal, Interim Commissioner Huxley found, among other things, that petitioner failed to meet her burden of proving that respondent’s denial of her transportation request was arbitrary or capricious.

Petitioner alleges that the Interim Commissioner’s decision was rendered under a misapprehension of fact.  Specifically, petitioner contends that she produced sufficient evidence to establish that the route used by respondent was not the nearest available route, that the addresses used by respondent were incorrect and therefore, respondent’s distance calculations were incorrect.

Petitioner raised the accuracy of respondent’s distance calculations in her prior appeal.  Thus, she has not demonstrated that the decision was rendered under a misapprehension of fact nor did she present any new material evidence with respect to respondent’s calculations that was not available at the time the decision was made.  Essentially, petitioner is attempting to reargue her original contentions regarding distance.  It is well settled that mere reargument of the issues presented in a prior appeal is not a basis for reopening an appeal (Application to reopen the Appeal of T.L. and W.L., 47 Ed Dept Rep 123, Decision No. 15,647; Application to reopen the Appeal of Kushner, 44 id. 116, Decision No. 15,116; Application to reopen the Appeal of Satler, 41 id. 293, Decision No. 14,690).

Petitioner also alleges that there is new and material evidence that was not available at the time respondent’s decision was made.  Specifically, petitioner maintains that respondent transports children to the LaVelle School for the Blind which is less than one mile from the nonpublic school attended by her son and that, therefore, transporting her son would not impose significant additional costs on respondent.  However, respondent denies that it provides transportation for any student attending the LaVelle School.  Even if petitioner had demonstrated that respondent was transporting students to another nearby nonpublic school, it does not follow that the additional transportation she is requesting would result in no significant additional cost to the school district.

On this record, I find no misapprehension of fact in the original decision.  Nor do I find any new material evidence that was not available at the time the decision was made.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE