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275.9 Filing and fee.
(a) Within five days after the service of any pleading or paper, the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234. The affidavit of service shall be in the form set forth below and shall indicate the name and official character of the person upon whom service was made.
FORM FOR AFFIDAVIT OF PERSONAL SERVICE
STATE OF NEW YORK
COUNTY OF . . . . . . . . . .} ss.:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., being duly sworn, deposes and says that he is over the age of eighteen years and is not a party in this proceeding; that on the . . . . . . . . . day of. . . . . . . . . ., 19. . . . . . , at No. . . . . . . . Street, in the town of . . . . . . . . . . . . . . . . . . . ., county of. . . . . . . . . . . . ., State of New York, he served the annexed . . . . . . . . . . . . . . on. . . . . . . . . . . . . . . . . . .by delivering to and leaving with said . . . . . . . . . . . . . . . . . . .at said time and place a true copy thereof.
Deponent further says he knew the person so served to be the said . . . . . . . . . . . . . . . . . . ., who is . . . . . . . . . . . . . . . in said district .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
(Signature)
Subscribed and sworn to before me
this . . . . . . . . . . . . day of. . . . . . . . . . . ., 19. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Signature and title of officer)
FORM FOR AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK
COUNTY OF . . . . . . . . . .} ss.:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., being duly sworn, deposes and says that he is over the age of eighteen years and is not a party in this proceeding; that on the . . . . . day of . . . . . . . . . . . . . . . . . . .,19 . . . . ., deponent served the within . . . . . . . . . . . . . . . . . . .upon . . . . . . . . . . . . . . . . . . . in this action, at . . . . . . . . . . . . . . . . . . . ., the addresses designated by . . . . . . . . . . . . . . . . . . . .for that purpose, by depositing a true copy of the same by mail, enclosed in a post paid properly addressed wrapper, in . . . . . . . . . . . . . . . a post office . . . . . . . . . . . . . . . . . . .official depository under the exclusive care and custody of the United States Post Office Department within the State of New York.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Signature)
Subscribed and sworn to before me
this. . . . . . . . . . . . .day of. . . . . . . . . . . , 19. . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Signature and title of officer)
(b) Filing Fee. A fee of $20, payable to the State Education Department, shall accompany the filing of a petition in an appeal to the commissioner of education, except that there shall be no fee for the filing of a petition pursuant to Education Law, section 4404(2). No fee shall be required in appeals brought before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of an impartial hearing officer but involve matters related to the provision of a free appropriate public education to a pupil with a handicapping condition. The requirement of a filing fee may be waived, at the discretion of the commissioner, upon application by a petitioner in the form of an affidavit by petitioner or petitioner’s attorney. Such affidavit shall set forth the amount and sources of all income of petitioner, whether taxable or not; shall list all property held by petitioner, including real estate, personal property and bank accounts, together with the total value of each category; and shall state that the petitioner is unable to pay the fee necessary to initiate the appeal.
275.10 Contents of petition. The petition shall contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner’s claim and of the specific act or acts complained of.
275.11 Notice with petition. (a) Each petition must contain the following notice:
Notice:
You are hereby required to appear in this appeal and to answer the allegations contained in the petition. Your answer must conform with the provisions of the regulations of the Commissioner of Education relating to appeals before the Commissioner of Education, copies of which are available from the Office of Counsel, New York State Education Department, State Education Building, Albany, N Y 12234.
If an answer is not served and led in accordance with the provisions of such rules, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the commissioner.
Please take notice that such rules require that an answer to the petition must be served upon the petitioner, or if he be represented by counsel, upon his counsel, within 20 days after the service of the appeal, and that a copy of such answer must, within five days after such service, be led with the Office of Counsel, New York State Education Department, State Education Building, Albany, N Y 12234.
(b) The provisions of this section shall not apply to appeals brought before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of an impartial hearing officer but involve matters related to the provision of a free appropriate public education to a pupil with a handicapping condition. The petition in such an appeal shall contain the notice set forth in section 279.3 of this Title, except that the notice shall indicate that a decision will be rendered by the commissioner.
275.12 Contents of answer. The answer of each respondent shall contain a clear and concise statement of his defenses to each claim and shall either admit or deny the allegations of the petition. In addition, each respondent may set forth affirmative defenses or defenses by way of avoidance. If more than one respondent has been named and served and if common questions of law or fact are involved, the respondents, if otherwise united in interest, may submit a joint answer to the petition.
275.13 Service of answer and supporting papers. (a) Each respondent upon whom a copy of the petition has been served shall, within 20 days from the time of such service, answer the same, either by concurring in a statement of facts with the petitioner or by service in the manner set forth in section 275.8(b) of this Part of an answer, together with all of respondent’s affidavits, exhibits and other supporting papers, except a memorandum of law. The date upon which personal service was made upon respondent shall be excluded in the computation of the 20-day period.
(b) The provisions of subdivision (a) of this section shall not apply to appeals before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of a impartial hearing but involve matters related to the provision of a free appropriate public education to a pupil with a handicapping condition. In such appeals, service of the answer and supporting papers shall be made in accordance with the provisions of section 279.5 of this Title.
275.14 Reply. (a) The petitioner shall reply to each affirmative defense contained in an answer. The reply, together with any affidavits which shall be limited to support of such reply, shall be served within 10 days after service of the answer to which it responds in the manner set forth in section 275. 8 (b) of this Part. If the answer has been served by mail upon petitioner or his counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period.
(b) The provisions of subdivision (a) of this section shall not apply to appeals before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of a impartial hearing officer but involve matters related to the provision of free appropriate public education to a pupil with a handicapping condition. In such appeals, no pleading other than a petition and an answer will be accepted or considered by the commissioner, except a reply by the petitioner to any procedural defenses interposed by a respondent. Such reply shall be served and filed within three days after service of the answer. If the answer has been served by mail upon petitioner or his counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the three-day period.
275.15 Representation by attorney. A party other than a school district or a corporation may prosecute or defend an appeal before the commissioner in person, or by an attorney. A school district or a corporate party may appear only by an attorney. An individual permitted to appear in administrative proceedings under a practice order issued pursuant to sections 478 and 484 of the Judiciary Law by a department of the Appellate Division of the Supreme Court of the State of New York may represent a party under the supervision of the attorney of record.
275.16 Limitation of time for initiation of appeal. An appeal to the commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition.
275.17 Amicus curiae. The commissioner may, in his sole discretion and upon written application submitted at or before oral argument, permit interested persons or organizations to submit memoranda of law amicus curiae in connection with a pending appeal. Those permitted to submit memoranda amicus curiae shall not be considered parties to the appeal before the commissioner and shall not be entitled to receive copies of pleadings and papers pertaining thereto or to participate in oral argument.
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