Appeal of CHRISTINE TANCREDI from action of the Board of Education of the Central Square Central School District and Superintendent Joseph Menard regarding a school closing.

Decision No. 17,381

(May 4, 2018)

Ferrara, Fiorenza, Larrison, Barrett & Rietz, P.C., attorneys for respondents, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the decision of the Board of Education of the Central Square Central School District ("respondent board") to close an elementary school.  The appeal must be dismissed.

On April 7, 2014, respondent board voted to close Cleveland Elementary School ("Cleveland school").  This appeal ensued.  Petitioner’s request for interim relief was denied on July 23, 2014.

Petitioner contends that respondent board’s decision was arbitrary and capricious because the district failed to make the proper filings in accordance with §100.18 of the Commissioner’s regulations, failed to follow the guidelines set forth in the Education Law and the Commissioner’s regulations, and because respondent board voted to close a school without a complete and comprehensive plan for the future.  Petitioner requests that the decision to close the Cleveland school be set aside and that respondents be directed to develop a comprehensive plan for the district with community input.

Respondents deny petitioner’s allegations and contend that the appeal must be dismissed as untimely and for failure to state a claim upon which relief may be granted.  Respondents further contend that petitioner’s claims regarding the school closure are barred by the doctrines of collateral estoppel and res judicata and that any claims regarding the potential impact of a motor speedway on the district’s middle school are speculative and do not serve as the basis for any relief.

I must first address the procedural issues.  Respondents object to portions of petitioner’s reply to the extent that it exceeds the permissible scope of a reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents also object to petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions that are not a part of the pleadings, including petitioner’s arguments regarding previous consolidation studies by the district.

Respondents also contend that the appeal must dismissed as untimely.  An appeal 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The board minutes submitted by respondent establish that, on April 7, 2014, respondent board voted “... that the Central Square Central School District hereby approves the building closure of a North Shore Elementary School, in which Cleveland Elementary School will be closed, effective July 1, 2014.”  I note that the July 1, 2014 date is the effective date of the Cleveland school’s closing and is not, as petitioner appears to contend, the effective date of respondent board’s resolution to close the school.  Accordingly, petitioner had until May 7, 2014, 30 days from respondent board’s April 7, 2014 decision, to commence this appeal by personal service of the petition and notice of petition on respondent (see e.g. Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647).  However, petitioner did not complete service on respondents until July 7, 2014, more than 30 days after the making of the board’s decision.  Petitioner also contends that the appeal is timely as it was commenced within 30 days of the board meetings held on June 2, 2014 and June 16, 2014, at which there were presentations and public discussion regarding implementation of the school closing.  Petitioner argues that respondent board had an opportunity to rescind the vote at each of those meetings but failed to do so and it is from that inaction by respondent board that petitioner is now appealing.  I find these arguments unpersuasive.  Just as a request for reconsideration does not extend the time to appeal, a board’s failure to reconsider a prior decision on its own initiative does not extend the time to appeal.  Ultimately, petitioner is challenging the board’s vote to close the Cleveland school, which occurred on April 7, 2014.  As this appeal was not commenced within 30 days of that board action and petitioner has not established that there was good cause for the delay, the appeal must be dismissed as untimely.

I take administrative notice of the prior Commissioner’s decision regarding the closing of the Cleveland school, Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647.  Although that appeal was dismissed on procedural grounds, a thorough analysis of the merits of this issue was set forth at length as dictum.  To the extent that petitioner makes the same or similar arguments, such arguments and analysis will not be reiterated here.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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