Decision No. 17,831
Application to reopen the Appeal of Martinez from action of the New York City Department of Education regarding a personnel matter.
Decision No. 17,831
(April 21, 2020)
James E. Johnson, Esq., Corporation Counsel of the City of New York, attorney for respondent, Jennifer Y. Hwang, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioner seeks to reopen Appeal of Martinez (59 Ed Dept Rep, Decision No. 17,781) which dismissed petitioner’s appeal as untimely and outside the jurisdiction of the Commissioner of Education. 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, advance new legal arguments, or 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 for improper service. Section 276.8(b) provides that service of an application to reopen “shall be made in the manner set forth in section 275.8(b)” of the Commissioner’s Regulations. Section 275.8(b) provides, in relevant part, that
service ... shall be made by United States mail, by private express delivery service or by personal service; service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service (8 NYCRR §275.8[b]).
Here, there is no evidence that petitioner served a copy of the application to reopen upon respondent. Petitioner’s affidavit of service indicates that she mailed the application to her own address, and respondent indicates that it did not receive a copy of the application. Therefore, petitioner’s application to reopen Appeal of Martinez (59 Ed Dept Rep, Decision No. 17,781) must be denied.
Even if properly served, petitioner’s application to reopen would be denied. While not entirely clear, petitioner appears to argue that the underlying appeal was timely because she received documentation concerning the April 2016 denial of her certificate of probation on November 6, 2018 and she commenced the appeal within 30 days of this date. Even assuming, arguendo, that petitioner received certain documents concerning the denial of her certificate of probation over two years after such denial, petitioner does not argue that she was, in fact, unaware that her probation had been denied. Indeed, as indicated in Appeal of Martinez (59 Ed Dept Rep, Decision No. 17,781), on or about February 6, 2017, petitioner filed an improper practice charge with the New York State Public Employment Relations Board (“PERB”) alleging that her union breached its duty of fair representation in connection with her appeal of the denial of her certification of completion of probation. It is actual knowledge of the facts underlying a claim that begins the 30-day time limitation in which to bring an appeal (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, petition dismissed Matter of O’Brien v. New York State Comm’r of Educ., et al. [July 3, 2012]; aff’d 112 AD3d 188 [3d Dept. 2013] appeal dismissed 22 NY3d 1125 ; mot. for leave to appeal den. 23 NY3d 903 ; cert den. 574 US 959 ). Thus, even if petitioner had properly served the instant application, she has failed to set forth a basis to reopen the underlying appeal pursuant to 8 NYCRR §276.8.
THE APPLICATION IS DENIED.
END OF FILE
 It appears that respondent only became aware of this submission when my Office of Counsel contacted respondent to inform it of the application and to inquire whether it received such submission.
 Moreover, petitioner commenced the underlying appeal on October 2, 2018, over a month prior to the date she claims to have received this documentation.