Highlights of recent changes to Parts 275 and 276 of the Regulations of the Commissioner
Parts 275 and 276 and §100.2(y) of the Commissioner’s regulations relating to appeals to the Commissioner pursuant to Education Law §§306 and 310 were amended effective December 11, 2008. Please note the following changes were adopted:
§275.3 Pleadings:
Clarifies that in order to file additional pleadings for good cause
shown, one must submit an application stating the reason the pleading
is necessary, a copy of the proposed pleading and proof of service on
all parties.
§275.5 Verification:
Clarifies that when a party is a corporation, limited liability
company (LLC), limited liability partnership (LLP) or other business entity,
the verification shall be made by an officer or authorized representative
thereof.
§275.6 Affidavit of verification:
Clarifies that the affidavit should be in “substantially” the
form prescribed and clarifies what signatures are required.
§275.8 Service of pleadings and supporting papers:
Clarifies that a petition due on a weekend can be served on the
following Monday and a petition due on a holiday can be served on the
next business day.
Provides for service of subsequent pleadings and papers by private
express delivery service.
Removes the requirement that service by mail be deposited in a
mail box “within the state.”
§275.9 Filing and fee:
Clarifies that the affidavit should be in “substantially” the
form prescribed.
Adds language to the affidavit of personal service to the effect
that the person served is duly authorized to accept service.
Adds Form for Affidavit of Service by Private Express Delivery
Service.
Removes the requirement that service by mail be deposited in a
mail box “within the State of New York.”
§275.11 Notice with petition:
Adds a new subdivision (b) to cross-reference notice provisions
for a stay request.
Adds a new subdivision (c) to cross-reference notice provisions
for a removal application.
Removes old subdivision (b) regarding reviews of determinations
of impartial hearing officers.
§275.12 Contents of answer:
Adds a new subdivision (b) to require districts, in student discipline
cases, to submit the record of the disciplinary hearing.
§275.13 Service of answer and supporting papers:
Adds a new subdivision (b) which clarifies that the Commissioner
has discretion to excuse a late answer for good cause shown.
Removes old subdivision (c) regarding reviews of determinations
of impartial hearing officers.
§275.14 Reply:
Removes subdivision (c) regarding reviews of determinations of
impartial hearing officers.
§275.15 Representation by attorney:
Clarifies the language regarding representation.
§275.16 Limitation of time for initiation of appeal:
Clarifies that the Commissioner has discretion to dismiss an untimely
appeal at any stage of the proceedings.
§275.18 Consolidations:
Adds a new provision clarifying that the Commissioner may, in his
discretion, consolidate appeals for the submission of pleadings and papers
or for the issuance of a decision.
§276.1 Stay of proceedings:
Requires that affidavits in opposition to a stay request be transmitted
to the Education Department by personal delivery, express delivery or
other means calculated to assure receipt within 24 hours of service.
§276.2 Oral argument:
Adds a statement that parties will be notified when a request for
oral argument is granted.
§276.3 Extensions of time to answer or reply:
Replaces the language of subdivision (a) to the effect that the
Commissioner may permit an extension of time to answer or reply for good
cause shown. A party seeking an extension shall make a request prior to
the expiration of the time to serve the answer or reply.
§276.4 Memoranda of law:
Clarifies that the petitioner’s memorandum of law is due within 20
days of service of the answer or 10 days after service of the reply, whichever
is later, and that the respondent’s memorandum of law is due within
30 days of service of the answer or 20 days after service of the reply,
whichever is later.
Removes old subdivision (b) regarding reviews of determinations
of impartial hearing officers.
§276.5 Additional affidavits, exhibits and other supporting papers:
Clarifies that in order to file additional affidavits, exhibits
and other supporting papers for good cause shown, one must submit an application
stating the reason the addition papers are necessary, a copy of the proposed
papers and proof of service on all parties.
§276.9 Dismissal of appeal:
Clarifies that the Commissioner may, at any stage of the proceedings,
dismiss an untimely or moot appeal.