Decision No. 16,891
Application to reopen the Appeal of TODD A. FULLER from action of the Board of Education of the Cattaraugus-Little Valley Central School District regarding a school closing.
Decision No. 16,891
(April 1, 2016)
Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek and Melanie J. Beardsley, Esqs., of counsel
ELIA, Commissioner.--Petitioner seeks to reopen Appeal of Fuller (54 Ed Dept Rep, Decision No. 16,758), which dismissed his challenge to the decision of the Board of Education of the Cattaraugus-Little Valley Central School District ("respondent board") to close its Little Valley campus. 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).
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 response to the decision’s denial of class status, petitioner incorrectly asserts that the designation of class status had already been granted, apparently because certain correspondence in this appeal contained a subject caption that included in the name of the appeal the abbreviation “et al.” after petitioner’s name. However, this, at the most, was done for pre-decision, administrative purposes only to indicate that petitioner sought to bring this appeal on behalf of others, and does not constitute a determination of class status since such determination can only be made in a judicial decision of the Commissioner rendered pursuant to Education Law §310 (8 NYCRR §275.2). The reasons for denial of class status are more than adequately set forth in the decision.
In response to the dismissal of the appeal for lack of standing, petitioner expresses disagreement with the decision’s findings and merely attempts to reargue this issue. This is not a sufficient basis to reopen an appeal.
Likewise, petitioner expresses disagreement with the decision’s findings and attempts to reargue issues concerning the terms of the annexation of the Little Valley Central School District to the Cattaraugus Central School District; the June 19, 2007 referendum in which voters approved a renovation project for the Little Valley campus; certain “assurances” approved by the Cattaraugus Central School District board of education in anticipation of voter approval of the annexation; and the decision’s refusal to order an audit or investigation of respondent. These do not provide a sufficient basis to reopen an appeal.
In conclusion, I find that petitioner’s application to reopen consists of attempts to reargue certain issues presented in his appeal, augment previously undeveloped factual assertions, and advance new legal arguments. It is well-settled that these are not bases for reopening an appeal (Application to Reopen the Appeal of Wolff, 52 Ed Dept Rep, Decision No. 16,391; Application to Reopen the Appeal of Thomas, 51 id., Decision No. 16,322).
THE APPLICATION TO REOPEN IS DENIED.
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