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Regulations of the Commissioner (8 NYCRR) Part 275 - Parties and Pleadings

Disclaimer (Last amended: 03/30/11)

Section 275.1  Parties.

The party commencing an appeal shall be known as petitioner and any adverse party, as respondent. After an appeal is commenced in accordance with these rules, no party shall be joined or be permitted to intervene, except by leave or direction of the Commissioner of Education.

Section 275.2  Class appeals. 

(a)  When allowed, an appeal may be maintained by one or more individuals on their own behalf and as representatives of a class of named or unnamed individuals only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class.  Minor variations of fact shall not preclude the maintenance of a class appeal when such variations are irrelevant for purposes of the decision.

(b)  Protective orders.  The commissioner may at any stage of the appeal issue such orders as may be necessary to fairly and adequately protect the interests of the persons on whose behalf the appeal is brought.

Section 275.3  Pleadings.

(a)  Types of pleadings.  There shall be a petition, an answer, and, if new material is alleged in the answer, a reply thereto.  No other pleading will be permitted, except as provided in subdivision (b) of this section.

(b) Additional pleadings.  The commissioner may permit or require the service and filing of additional pleadings upon good cause shown and upon such terms and conditions as the commissioner may specify.  A party seeking to file an additional pleading shall submit an application to the Office of Counsel, at the address specified in subdivision (a) of section 275.9 of this Part, which shall state the reason(s) why such pleading is necessary and include a copy of the proposed pleading, together with proof of service of the application and the proposed pleading upon all parties in accordance with subdivision (b) of section 275.8 of this Part. The provisions of this subdivision shall not apply to a charter school location/co-location appeal pursuant to section 276.11 of this Part.

(c)  Form of pleadings.  All pleadings and affidavits shall be submitted in typewritten form, double spaced, on white paper 8 1/2 by 11 inches in size, and shall set forth the allegations of the parties in numbered paragraphs. Such pleadings shall be addressed "To the Commissioner of Education", and shall be filed in accordance with the provisions of section 275.9 of this Part.

(d)  Form of pleadings for appeals regarding the education of homeless children and youth.  Notwithstanding the provisions of subdivision (c) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2 (x) of this Title, if the petitioner is the parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x) of this Title, and if such petitioner submits a form petition prescribed by the commissioner, the pleadings shall be legible but shall not be required to be submitted in typewritten form.

Section 275.4  Names of parties or attorneys to be endorsed on all papers.

(a)  All pleadings and papers submitted to the commissioner in connection with an appeal must be endorsed with the name, post office address and telephone number of the party submitting the same, or, if a party is represented by counsel, with the name, post office address and telephone number of the party’s attorney.

(b)  Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or    youth's access to a free, appropriate public education pursuant to section 100.2 (x) of this Title, if the petitioner is the parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x) of this Title, the petitioner, in lieu of such endorsement, may endorse all pleadings and papers submitted to the commissioner in connection with an appeal with the name, post office address and telephone number of the local educational agency liaison for homeless children and youth.

Section 275.5  Verification.

(a)  All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners, except that when the appeal is taken by the trustee or the board of trustees or board of education of a school district, it shall be verified by any person who is familiar with the facts underlying the appeal, pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board. An answer shall be verified by the oath of the respondent submitting such answer. If the appeal is brought from the action of the trustee or board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal. If two or more respondents are united in interest, verification of the answer shall be made by at least one of them who is familiar with the facts.  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 other authorized representative thereof.  A reply shall be verified in the manner set forth for the verification of an answer.

(b)  Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2 (x) of this Title, the parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x) of this Title, in lieu of verifying his/her pleading(s) pursuant to subdivision (a) of this section, may include in each pleading a statement that is signed by such parent or guardian or unaccompanied youth and which indicates that based on his/her information and belief the information contained in the pleading is true and an acknowledgment that he/she is aware that, pursuant to Penal Law section 175.30, a person who knowingly offers a false instrument for filing to a public official or public servant is guilty of Offering a False Instrument for Filing in the 2nd Degree, a Class A Misdemeanor.

Section 275.6  Affidavit of verification.

            The affidavit of verification shall be in substantially the following form:

STATE OF NEW YORK 

COUNTY OF ______ ss.:

 ______________________being duly sworn, deposes and says that he/she is ______________________ in this proceeding; that he/she has read the annexed ______________________ and knows the contents thereof; that the same is true to the knowledge of deponent except as to the matters therein stated to be alleged upon information and belief, and as to those matters he/she believes it to be true.

                        _______________________________________________________

                                                (Signature)

                          _____________________________________________________

(In the case of a corporation, LLC, LLP, or other business entity, include the title of officer or authorized representative signing the affidavit of verification)

Subscribed and sworn to before                                                 

me this  ___________ day of ___________                                        

20____                                                                         

 _________________________________________                                                                     

(Signature of notary public)                                               

Section 275.7  Oaths.

(a)  All oaths required by these rules may be taken before any person authorized to administer oaths within the State of New York. The statement of an attorney admitted to practice in the courts of this State and appearing in an appeal as attorney of record or of counsel to the attorney of record, when subscribed and affirmed by him/her to be true under the penalty of perjury, may be served or filed in the appeal in lieu of and with the same force and effect as an affidavit.

(b)  Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2 (x) of this Title, the signed statement of a parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x) of this Title, that the information contained in his/her petition or other pleading is true to the best of his/her knowledge and an acknowledgement that he/she is aware that, pursuant to Penal Law section 175.30, a person who knowingly offers a false instrument for filing to a public official or public servant is guilty of Offering a False Instrument for Filing in the 2nd Degree, a Class A Misdemeanor, may be served or filed in the appeal in lieu of and with the same force and effect as an affidavit.

Section 275.8  Service of pleadings and supporting papers.

(a)  Petition.  A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if  a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner. If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service. If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services. Pleadings may be served by any person not a party to the appeal over the age of 18 years.  If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

(b)  Subsequent pleadings and papers.  All subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney. When the same attorney appears for two or more parties, only one copy need be served upon such attorney.  Except as provided in section 276.11 of this Title for charter school location/co-location appeals, service of all pleadings subsequent to the petition 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. Service by private express delivery shall be complete upon delivery of the pleading or paper enclosed in a properly addressed wrapper to an employee or agent of such private express delivery service or by deposit of such pleading or paper, properly addressed and wrapped, in a depository of such private express delivery service. If the last day for service of any pleading or paper subsequent to the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.   

(c)  Award of bid.  If an appeal involves the award of a contract pursuant to article 5-A of the General Municipal Law or pursuant to subdivision 14 of section 305 of the Education Law, and a party other than the petitioner has been designated as the successful bidder or has been awarded a contract, such successful bidder must be joined as a respondent and must be served with a copy of the petition. In such case, the respondent board of education or board of trustees shall forward to the commissioner, within 20 days after service of the petition on appeal, a copy of the notice to bidders together with proof of publication thereof, a copy of the specifications and copies of all bids or proposals.

(d)  Disputed elections.  If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent. In such case, except where the eligibility of a district officer is involved, any qualified voter may serve and file an answer in such appeal whether or not the trustee or board of trustees or board of education serves and files an answer therein.

(e)  Alternative service in appeals regarding the education of homeless children.  Notwithstanding the provisions of subdivisions (a) and (b) of this section, service of pleadings and supporting papers in appeals regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title may be made upon a school district, school district employee and/or school district officer named as a party respondent by delivering a copy of the pleadings and supporting papers to the school district's local educational agency liaison for homeless children and youth. The local educational agency liaison for homeless children and youth shall either accept service of the pleadings and supporting papers on behalf of the named school district, school district employee and/or school district officer, or effect service by mail by mailing the petition, petitioner's affidavits, exhibits, and other supporting papers to the named school district employee, school district officer and/or a person in the office of the superintendent who has been designated by the board of education to accept service on behalf of the school district, and by mailing all subsequent pleadings and papers to the adverse party or, if the adverse party is represented by counsel, to  the party’s attorney. When the same attorney appears for two or more parties, only one copy need be served upon the attorney.

Section 275.9  Filing and fee. 

(a)  Within five days after the service of any pleading or paper or, in the case of a charter school location/co-location appeal pursuant to section 276.11 of this Title, within the period specified in such section 276.11, 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, NY 12234. The affidavit of service shall be in substantially 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/she is over the age of eighteen years and is not a party in this proceeding; that on the ____day of ____, 20____ , at No. _____________________ Street, in the town of ______________, county of _________, State of New York, he/she served the annexed ___________ on _______________________by delivering to and leaving with said ______________________ at said time and place a true copy thereof.  Deponent further says he/she knew the person so served to be the said ________________who is ____________________ in said district and who is duly authorized to accept service.

                                                                        _______________________________

                                                                                    (Signature)

Subscribed and sworn to before                                                  

me this  ___________ day of ___________,  20__ .

_________________________________

(Signature of notary public)

FORM FOR AFFIDAVIT OF SERVICE BY MAIL

STATE OF NEW YORK 

COUNTY OF  ______ss.:

 _____________________ , being duly sworn, deposes and says that he/she is over the age of eighteen years and is not a party in this proceeding; that on the ____day of _______,  20____, 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.

                                                                        ____________________________

                                                                                    (Signature)

Subscribed and sworn to before me this day of  ____, 20____

 ____________

(Signature of notary public)

FORM FOR AFFIDAVIT OF SERVICE BY PRIVATE EXPRESS DELIVERY SERVICE

STATE OF NEW YORK 

COUNTY OF  ______ss.:

                        _____________________ , being duly sworn, deposes and says that he/she is over the age of eighteen years and is not a party in this proceeding;  that on the ___ day of ______________, 20__, deponent served the within upon ____________ in this action, at _______________ , the address designated by __________ for that purpose, by:

(1)  delivering a true copy of the same, enclosed in a properly addressed wrapper, to an employee/agent of _______________ (name of private express delivery service) , for delivery to said party at said address; or

(2)  depositing a true copy of the same, enclosed in a properly addressed wrapper, in a depository of _______________ (name of private express delivery service) for delivery to said party at said address.

                                                                        ____________________________                                                                                                         (Signature)

Subscribed and sworn to before me this day of  ____, 20____

______________ ____________

(Signature of notary public)

(b)  Filing in an appeal regarding the education of a homeless child or youth.  In an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, within five days after the receipt and/or acceptance of service of any pleading or paper from petitioner, the local educational agency liaison for homeless children and youth, shall transmit the original, together with an affidavit of such local educational agency liaison proving that he/she either accepted service of the pleading on behalf of the adverse party or served the pleading by mailing it to the adverse party, to the Office of Counsel, Education Department, State Education Building, Albany, NY 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 ACCEPTANCE OF PERSONAL SERVICE BY LOCAL EDUCATIONAL LIAISON FOR HOMELESS CHILDREN AND YOUTH

STATE OF NEW YORK 

COUNTY OF  ______ss.:

 __________________, being duly sworn, deposes and says that he/she is the local educational agency liaison for homeless child and for youth for the school district; that on the ____day of ____ , 20 ____ he/she accepted service of the annexed ______ on behalf of _____________________ .

                                                                        ________________________________

                                                                                    (Signature)

 Subscribed and sworn to before me this  ____ day of ____ , 20 __

 ____________

(Signature of notary public)

FORM FOR AFFIDAVIT OF SERVICE BY MAIL BY LOCAL EDUCATIONAL AGENCY LIAISON

STATE OF NEW YORK 

COUNTY OF  ______ss.:

 ________________________, being duly sworn, deposes and says that he/she is over the age of eighteen years and is the local educational agency liaison for homeless children and youth for the ____________________ school district; that on the ____ day of ____, 20 ____, deponent served the within __________ upon _________________ in this action, at _____________________ , the address designated by ____________________ for that purpose, by depositing a true copy of the same mail, enclosed in a post paid wrapper addressed to the named school district employee or officer or a person in the office of the superintendent who has been designated by the board of education to accept service on behalf of the school district, in ____ a post office ____ official depository under the exclusive care and custody of the United States Post Office Department.

                                                                         ________________________________

                                                                                     (Signature)

Subscribed and sworn to before me this day of  ____ , 20 __

 ____________________________________

(Signature of notary public)

(c)  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 regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title. 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.

Section 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/herself 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.

Section 275.11  Notice with petition.

(a)  Each petition must contain the following notice, except that in the case of a charter school location/co-location appeal pursuant to section 276.11 of this Title, the petition must contain the notice prescribed in such section 276.11:

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 at www.counsel.nysed.gov or from the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234. 

If an answer is not served and filed 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 the petitioner be represented by counsel, upon the 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 filed with the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.

(b)  If a stay is being requested, the notice provisions of section 276.1 of this Title shall also apply.

(c)  If seeking removal of a school officer, the notice provisions of section 277.1 of this Title shall also apply.

Section 275.12  Contents of answer.

(a) The answer of each respondent shall contain a clear and concise statement of each respondent’s 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.

(b)  In appeals involving student discipline, it shall be the responsibility of the board of education, board of trustees or sole trustee to include with its answer the record of the disciplinary hearing prepared in accordance with Education Law section 3214.  The record shall include the transcript of the hearing, in either stenographic or tape recorded form, and any documents admitted into evidence.

Section 275.13  Service of answer and supporting papers.

(a)  Except in the case of a charter school location/co-location appeal pursuant to section 276.11 of this Title, 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. The date upon which personal service was made upon respondent shall be excluded in the computation of the 20-day period. The time to answer in a charter school location/co-location appeal pursuant to section 276.11 of this Title shall be governed by Education Law section 2853(3)(a-5) and such section 276.11.

(b)  The commissioner, in his/her sole discretion, may excuse a failure to serve an answer within the time prescribed in subdivision (a) of this section for good cause shown.  The reasons for such failure shall be set forth in the answer.

(c)  Alternative service of answer and supporting papers in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title.  If petitioner so elects, respondent shall serve the answer upon the local educational agency liaison for homeless children and youth, together with all of respondent's affidavits, exhibits and other supporting papers, except a memorandum of law. In such case, the local educational agency liaison for homeless children and youth shall notify the petitioner of his/her receipt of the answer, together with all of respondent's affidavits, exhibits and other supporting papers by serving these documents upon petitioner at petitioner's last known address in the manner set forth in section 275.8(b) of this Part or, upon petitioner's request, by making copies of these documents available to petitioner without cost.

Section 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, except that a reply in a charter school location/co-location appeal pursuant to section 276.11 of this Title shall be served within the time prescribed by such section 276.11. If an answer has been served by mail upon petitioner or petitioner’s counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period.

(b)  Reply in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title. 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 in the manner set forth in either section 275.8(b) or (e) of this Part.

Section 275.15  Representation by attorney.

An individual party may represent himself or herself in an appeal before the commissioner or may be represented by an attorney.  A school district, corporation, LLC, LLP or other business entity shall 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.

Section 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 may, in his/her discretion, and at any stage of the proceedings, dismiss an untimely appeal.  The commissioner, in his/her 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.

Section 275.17  Amicus curiae.

The commissioner may, in his/her 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.

Section 275.18 Consolidation

If common questions of law and fact are involved, the commissioner may, in his or her sole discretion and at any stage of the proceedings, consolidate two or more appeals for the submission of pleadings and other papers and/or the issuance of a decision.  In such case, the commissioner may permit or require the service and filing of pleadings, affidavits, memoranda of law and any other papers required or authorized to be served pursuant to Parts 275 and 276 upon such terms as the commissioner may specify.