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Section 276.1 Stay of proceedings.
(a) The initiation of an appeal shall not, in and of itself, effect a stay of any proceedings on the part of any respondent. If the petitioner desires a stay, he shall make application therefor by a duly verified petition, stating the facts and the law upon which such stay should be granted. Affidavits in opposition to an application for a stay order may be submitted by any party opposing such application. Such affidavits shall be served on all other parties and led with the office of counsel within three business days after service of the petition, unless the commissioner shall provide otherwise. The commissioner may, in his discretion, with or without application therefor, grant a stay if in his judgment the issuance of such a stay is necessary to protect the interests of the parties, or any of them, pending an ultimate determination of the appeal.
(b) A petition which contains a request for a stay shall contain the following notice in addition to that otherwise required by this Chapter:
Please take further notice that the within petition contains an application for a stay order. Affidavits in opposition to the application for a stay must be served on all other parties and led with the Office of Counsel within three business days after service of the petition.
(c) The provisions of this section shall not apply to appeals brought pursuant to section 4404 of the Education Law seeking review of a determination of an impartial hearing officer. The provisions of subdivision 4 of section 4404 of the Education Law and section 200.5(a)(2)(iii) of the Regulations of the Commissioner of Education shall apply exclusively in such appeals. A determination of pendency pursuant to Education Law subdivision 4 of section 4404 of the Education Law shall be made in writing, in the first instance, by the impartial hearing officer and may be reviewed by a State review officer.
(a) If a petitioner desires an opportunity for oral argument before the commissioner, a request therefor must be clearly set forth in the petition. If no such request is made, the respondent or, if there be more than one, a respondent, may request oral argument at any time prior to or with the service of an answer. If a petitioner has failed to request oral argument, but respondent has made a timely request, petitioner may, within two weeks from receipt of respondent’s request, request oral argument on his own behalf.
(b) The commissioner may, in his sole discretion, determine whether oral argument shall be had.
(c) Argument on appeals to the commissioner may be heard before the commissioner, the acting commissioner or the counsel.
(d) All evidentiary material shall be presented by affidavit or by exhibits. No testimony is taken and no transcript of oral argument will be made.
(e) Adjournment of the date of oral argument. Once an appeal has been scheduled for oral argument on a particular date by the office of counsel and due notification has been given to the respective parties or their attorneys, no adjournment of that date will be granted by the commissioner unless timely application is made therefor, upon notice to all parties. Such application shall be in writing, addressed to the office of counsel, must be postmarked not later than 10 days prior to the date on which oral argument is scheduled to be heard, and shall set forth in full the reasons for the request. Oral argument of an appeal may not be adjourned solely by stipulation of the parties or their counsel.
(f) The maximum time allotted for oral argument will be 20 minutes for each party except in extraordinary cases where, upon application, the commissioner extends such time.
276.3 Extensions of time to answer or reply. No extension of time to answer the petition or to reply to an answer will be granted by the commissioner unless timely application is made therefor, upon notice to all parties. Such application shall be in writing, addressed to the office of counsel, must be postmarked not later than five days prior to the date on which the time to answer or reply will expire, and shall set forth in full the reasons for the request. The time to answer a pleading may not be extended solely by stipulation of the parties or their counsel.
276.4 Memoranda of law. (a) Memoranda of law, consisting of the parties’ arguments of law may be submitted by any party to an appeal, and may be requested by the commissioner or by his counsel. The petitioner shall serve a copy of any memorandum of law upon every other party to the appeal in the manner provided by subdivision (b) of section 275.8 of this Chapter, and shall file such memorandum of law, with proof of service thereof in accordance with section 275.9 of this Chapter, within 20 days after service of the answer. Each respondent shall serve a copy of any memorandum of law, upon every other party in the manner provided by section 275.8 (b) of this Title, and shall file such memorandum of law with proof of service thereof in accordance with section 275.9 of this Title, within 30 days after service of the answer. Where the answer is served upon petitioner or petitioner’s counsel by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner’s memorandum of law must be served and led. Reply memoranda will be accepted only with the prior approval of the commissioner. The commissioner, in his sole discretion, may permit the late filing of memoranda of law upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal, together with proof of service of a copy of such application upon all other parties to the appeal.
(b) Notwithstanding the provisions of subdivision (a) of this section, in an appeal brought before the commissioner pursuant to Education Law, section 310 that does not seek review of a determination of an impartial hearing officer but involves matters related to the provision of a free appropriate public education to a pupil with a handicapping condition, memoranda of law shall be served by the parties together with their respective pleadings.
276.5 Additional affidavits, exhibits and other supporting papers. The commissioner may permit or require the service and filing of affidavits, exhibits and other supporting papers, in addition to those served in accordance with sections 275.8, 275.13, and 275.14 of this Title, upon such terms and conditions as he may specify. Such affidavits, exhibits and other supporting papers may be served upon all other parties and led with the office of counsel only with the prior permission of the commissioner, granted upon application of the party desiring to submit such document. The affidavits, exhibits and other supporting papers shall accompany such application, and the application, together with the affidavits, exhibits and other supporting papers, shall be served upon all other parties in accordance with section 275.8 (b) of this Title.
276.6 Records and reports. The commissioner may, in his discretion, in the determination of an appeal, take into consideration any official records or reports on file in the Education Department which relate to the issues involved in such an appeal.
276.7 Decisions to be led. A copy of the decision of the commissioner in an appeal will be forwarded by the office of counsel to all parties to the appeal, or, if they be represented by counsel, to counsel for the respective parties, with instructions for service and filing as may be appropriate. A copy will also be sent to those persons or organizations who have been granted leave to submit memoranda amicus curiae.
276.8 Reopening of a prior decision. (a) Any party to an appeal may, within 30 days after the date of a decision thereon, apply by petition to the commissioner for a reopening of said decision. Applications for reopening are addressed solely to the discretion of the commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made. No oral argument shall be had in connection with an application for reopening unless the commissioner directs that such arguments be had.
(b) An application to reopen a decision shall set forth concisely the basis upon which the applicant believes such decision should be reopened. Service of the application shall be made in the manner set forth in subdivision (b) of section 275.8 of this Chapter. Affidavits in opposition to an application to reopen may be submitted by any party opposing such application. Service of such affidavits in opposition shall be made in accordance with the provisions of subdivision (b) of section 275.8 of this Chapter, and within the time by which an answer must be served pursuant to section 275.13 of this Chapter.
(c) The commissioner may, on his own motion, reopen a prior decision in the absence of an application therefor where in his judgment the interests of justice will be served thereby.
(d) The provisions of this section shall not apply to appeals brought pursuant to section 4404 of the Education Law. The determination of a State review officer of the State Education Department shall be final, provided that either party may seek judicial review by means of a proceeding pursuant to article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.
276.9 Dismissal of appeal. The commissioner may, in his discretion, and at any stage of the proceedings, dismiss an appeal if it appears to his satisfaction that the petition does not set forth a clear and concise statement of the petitioner’s claim or that the appeal has become academic. The provisions of this section shall not apply to appeals before a State review officer of the State Education Department brought pursuant to section 4404 of the Education Law.
276.10 Transfer of appeals and severance of claims. (a) Appeals to the commissioner initiated on or after July 1, 1990 which seek review of the determination of an impartial hearing officer after a hearing regarding the identification, evaluation, program or placement of a student with a disability, shall be transferred by the commissioner to a State review officer of the State Education Department for determination. In the event that the commissioner determines that a pleading in an appeal to the commissioner raises one or more claims which seek review of the determination of an impartial hearing officer pursuant to Education Law, section 4404(2), the commissioner shall direct that such claim or claims be severed from the appeal and shall transfer the severed claims to a State review officer for determination. Upon transfer pursuant to this section, such an appeal or severed claim shall be deemed to be an appeal to the State review officer initiated on the date that the original appeal to the Commissioner of Education was initiated.
(b) Appeals from an impartial hearing officer's ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law, which may be reviewed by a State review officer. However, in an appeal to the State review officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue.
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