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Decision No. 16,391

Application to reopen the Appeal of ELEANOR WOLFF from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding the lease of real property.

Decision No. 16,391

(July 27, 2012)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks to reopen the Appeal of Wolff, 50 Ed Dept Rep, Decision No. 16,215, which dismissed her challenge to, among other things, the lease of a building owned by the Hewlett-Woodmere Union Free School District (“respondent”), known as the “Carriage House.”  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 (Application to reopen the Appeal of Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911; Application to reopen the Appeal of Zulawski, 47 id. 191, Decision No. 15,664).

As a threshold matter, petitioner’s application is untimely. Pursuant to §276.8 of the Commissioner’s regulations, an application for reopening must be made within 30 days after the date of the decision petitioner seeks to reopen.  The decision petitioner seeks to reopen was rendered on March 31, 2011, but the instant application was not made until May 26, 2011.  Therefore, it is untimely and must be dismissed.

Moreover, petitioner has not established any basis for reopening the prior decision.  As noted above, §276.8 of the Commissioner’s regulations provides that applications to reopen 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.  Petitioner has not made the requisite showing here.

In particular, petitioner argues that her appeal should not have been dismissed as untimely because the date that rent was first due to respondent (August 1, 2010) would have been “a better date than the signing of the lease” for purposes of determining the timeliness of her appeal.  However, petitioner does not assert any misapprehension of fact or new material evidence not available at the time of the prior decision.  Petitioner had an opportunity to make this argument in reply to the untimeliness defense raised in respondent’s answer in the prior appeal.  Petitioner did not do so and her attempt to now assert this argument does not constitute a basis for re-opening the prior decision.

Further, it well settled that appeals to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879) (emphasis added). 

It is undisputed that respondent decided to lease the Carriage House in October 2009, that it decided to lease the Carriage House to the Five Towns Senior Center, Inc. (“senior center”) in December 2009, and that it entered into a lease with the senior center in February 2010.  Moreover, I cannot find on the record before me that respondent made these decisions “without public discussion and without transparency” as petitioner suggests.  Therefore, the date that the senior center was required to first pay rent is irrelevant for purposes of determining the timeliness of petitioner’s prior appeal.

Petitioner also contends that she “did not construe the [senior center] to have standing to be joined in [her] appeal,” and that it was not “adversely affected by lack of ‘joining’.”  Here again, however, petitioner could have raised this argument in a reply in the prior appeal, but did not do so.  Nor does she assert any misapprehension of fact or new material evidence not previously available in connection with her instant argument.  Accordingly, I again find that this argument does not constitute a basis for re-opening the prior decision.

Furthermore, and to the merits of petitioner’s claim, the senior center is the lessee of the Carriage House and as such, is a party to the lease being challenged by petitioner.  Accordingly, had petitioner been granted the relief that she sought (which included a request that further use of the Carriage House be disallowed, and that the Carriage House “stay closed for any and all activities of the [senior center]”), the senior center would undoubtedly have been adversely affected.  It was therefore a necessary party to petitioner’s appeal. 

In sum, I find that petitioner’s application is little more than an attempt to reargue aspects of her original appeal.    It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening (seee.g.Application to Reopen the Appeal of Thomas, 51 Ed Dept Rep, Decision No. 16,322;  Application to Reopen the Application of Gillen, 50 id., Decision No. 16,112).  

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE.