Application to reopen the Appeal of Kaufmann, et al., from action of the Board of Education of the Massapequa Union Free School District and board trustees Timothy Taylor, Joseph LaBella and Brian Butler regarding school reorganization.

Decision No. 17,511

(September 26, 2018)

Guercio & Guercio LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks to reopen Appeal of Kaufmann, et al. (57 Ed Dept Rep, Decision No. 17,250) which sustained in part petitioners’[1] appeal from a July 13, 2017 decision of the Board of Education of the Massapequa Union Free School District (“respondent”) reversing a February 9, 2016 decision to reorganize the grades in its elementary schools and middle 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 (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).  The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (8 NYCRR §276.8[a]; see Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395).

The application must be dismissed as untimely.  The underlying decision was issued on November 7, 2017. Petitioner commenced this proceeding on August 17, 2018, more than nine months later.  Petitioner offers no excuse for this delay.  Further, petitioner has neither alleged nor shown 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.  Therefore, petitioner’s application to reopen the prior decision must be denied.

THE APPLICATION IS DENIED.

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