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Regulations of the Commissioner (8 NYCRR) Part 276 - Rules of Practice

Disclaimer (Last amended: 03/30/11)

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.  A petitioner desiring a stay 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 within three business days after service of the petition on all other parties, and the original affidavits shall be transmitted to the Office of Counsel, New York State Education Department, State Education Department Building, Albany, NY 12234 by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such affidavits within 24 hours of service, unless the commissioner shall provide otherwise. The commissioner may, in his/her discretion, with or without application therefor, grant a stay if in the commissioner’s 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 Title:

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 filed 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(l) of the Regulations of the Commissioner of Education shall apply exclusively in such appeals. A determination of pendency pursuant to 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.

(d)  The provisions of this section shall not apply to a charter school location/co-location appeal pursuant to section 276.11 of this Part.

Section 276.2  Oral argument. 

(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.

(b)  The commissioner may, in his/her sole discretion, determine whether oral argument shall be had.  In the event the Commissioner grants a request for oral argument, the Office of Counsel shall notify the parties.

(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 adjournments 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.

(g) The provisions of this section shall not apply to a charter school location/co-location appeal pursuant to section 276.11 of this Part.

Section 276.3  Extensions of time to answer or reply.

(a)  The commissioner may permit an extension of time to answer the petition or reply to an answer upon good cause shown and upon such terms and conditions as the commissioner may specify.  A party seeking an extension shall make such request to the Office of Counsel prior to the expiration of the time to serve such answer or reply. 

(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 petitioner may elect to provide notice of the application for an extension of time to reply to an answer to all parties by delivering the application to the local educational agency liaison for homeless children and youth. The local educational agency liaison for homeless children and youth shall mail the application to all adverse parties and the office of counsel. Such application shall be in writing and must be postmarked not later than five days prior to the date on which the time to reply will expire, and shall set forth in full the reasons for the request.

Section 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’s counsel or by the commissioner. The petitioner shall serve a copy of any memorandum of law upon every other party to the appeal in the manner provided by section 275.8(b) of this Title and, except in the case of a charter school location/co-location appeal pursuant to section 276.11 of this Part, shall file such memorandum of law, with proof of service thereof in accordance with section 275.9 of this Title, within 20 days after service of the answer or 10 days after service of the reply, whichever is later. 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, except in the case of a charter school location/co-location appeal pursuant to section 276.11 of this Part, 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 or 20 days after service of the reply, whichever is later.  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 filed. Except in the case of a charter school location/co-location appeal pursuant to section 276.11 of this Part, reply memoranda will be accepted only with the prior approval of the commissioner. The commissioner, in his/her 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.  In a charter school location/co-location appeal pursuant to section 276.11 of this Part, memoranda of law shall be served and filed in the manner prescribed in such section 276.11.

 (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, memoranda of law may be served in the manner provided by either section 275.8 (b) or (e) of this Title.

Section 276.5  Additional affidavits, exhibits and other supporting papers. 

(a)  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 good cause shown and such terms and conditions as  the commissioner may specify.  A party seeking to file affidavits, exhibits and other supporting papers pursuant to this subdivision shall submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with subdivision (b) of section 275.8 of this Part.

(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 affidavits, exhibits and other supporting papers may be served in accordance with either section 275.8(b) or (e) or section 275.13(b) of this Title.

(c)  The provisions of this section shall not apply to a charter school location/co-location appeal pursuant to section 276.11 of this Part.

Section 276.6  Records and reports.

The commissioner may, in his/her 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.

Section 276.7  Decisions to be filed.

(a)  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. 

(b)  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, a copy of the decision of the commissioner in an appeal will also be forwarded by the office of counsel to the local educational agency liaison for homeless children or youth.

Section 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 argument 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 section 275.8(b) of this Title. 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 section 275.8 (b) of this Title, and within the time by which an answer must be served pursuant to section 275.13 of this Title.

(c)  The commissioner may, on his/her own motion, reopen a prior decision in the absence of an application therefor where in the commissioner’s 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.

(e)  Notwithstanding the provisions of subdivision (b) 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, an application to reopen a decision may be served in the manner set forth in either section 275.8(b) or (e) of this Title. Service of affidavits in opposition to an application to reopen shall be served in accordance with the provisions of either section 275.8(b) or (e) or section 275.13(b) of this Title.

(f)  The provisions of this section shall not apply to a charter school location/co-location appeal pursuant to section 276.11 of this Part.

Section 276.9  Dismissal of appeal.

The commissioner may, in his/her discretion, and at any stage of the proceedings, dismiss an appeal if it appears to the commissioner’s satisfaction that the appeal is untimely, pursuant to section 275.16 of this title; that the petition does not set forth a clear and concise statement of the petitioner's claim; or that the appeal has become moot. 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.

Section 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.

Section 276.11 Procedures in a charter school location/co-location appeals pursuant to Education Law §2853(3).

(a) Definitions.  As used in this section:

(1) “Board of education”  means the Panel for Educational Policy of the City School District of the City of New York.

(2) “Day” means business day.

(b) Applicability.  (1)  The procedures set forth in this section shall apply to appeals pursuant to Education Law §2853(3)(a-5) from:

(i) final determinations of the board of education to locate or co-locate a charter school within a public school building;

(ii) the implementation of, and compliance with, the building usage plan developed pursuant to Education Law §2853(3)(a-3); and/or

(iii)  revisions of such a building usage plan, relating to a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, on the grounds that such revision fails to meet the equitable access standard set forth in Education Law §2853(3)(a-3)(2)(B). 

(2) Except as provided in this section, the procedures set forth in Part 275 of this Title and in this Part shall govern the practice in such appeals. 

(3)  The initiation of an appeal shall not, in and of itself, effect a stay of any proceedings on the part of respondent and a stay order shall not be available in an appeal pursuant to this section.

(c) Petition and Notice of Petition.  (1)  The petition shall be served in the manner prescribed in subdivision (a) of section 275.8 of this Title, together with all of petitioner’s affidavits, exhibits and supporting papers and petitioner’s memorandum of law, if any.  The petition may not include any claims challenging actions other than those set forth in paragraph (1) of subdivision (b) of this section.

(2) The petition must contain the following notice:

Notice of Petition in Charter School Location/Co-location Appeal pursuant to Education Law §2853(3):

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 10 business days after the service of the appeal, and that a copy of such answer must, within one business day after such service, be filed with the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.

(3)  An appeal commenced by service of a petition that fails to contain the Notice of Petition required by paragraph (2) of this subdivision shall be deemed to be a non-expedited appeal pursuant to Education Law §310, Part 275 of this Title and this Part, and the provisions of this section shall not apply to such appeal.

(d)  Filing and fee.  The original of any pleading or paper served under this section, 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, by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such pleading or paper within one business day of such service.  The affidavit of service shall be in substantially the form set forth in section 275.9 of this Title.  The fee for filing of the petition shall be as provided in section 275.9(c) of this Title

(e)  Subsequent pleadings and supporting papers. 

(1)  An answer shall be served within 10 days of service of the petition and a reply to each affirmative defense raised in the answer shall be served within two days of service of the answer; provided that the commissioner, in his/her sole discretion, may excuse a failure to serve an answer or reply within the time prescribed herein for good cause beyond the control of the requesting party.  The reasons for such failure shall be set forth in the answer or reply. 

(2)  Service of all subsequent pleadings and supporting papers shall be made by personal delivery or next day delivery by express mail or a private express delivery service, in accordance with the provisions of section 275.8(b) of this Title; provided that, upon consent of the receiving party, service of subsequent pleadings and supporting papers may be made by electronic mail (e-mail) communication. 

(f) Memoranda of law.  Memoranda of law, consisting of the parties' arguments of law, may be submitted by any party to an appeal.  The petitioner shall serve and file any memorandum of law with the petition, and respondent shall serve and file any memorandum of law with the answer.  The petitioner shall serve and file any reply memorandum of law with the reply.

(g)  Additional pleadings, affidavits, exhibits and other supporting papers.  The commissioner may require the service and filing of pleadings, affidavits, exhibits and other supporting papers, in addition to those served in accordance with sections 275.8, 275.13, 275.14 of this Title and with this section, upon such terms and conditions as the commissioner may specify. 

(h) Dismissal of claims.  Any claims included in the petition in a charter school location/co-location appeal in violation of paragraph (1) of subdivision (c) of this section shall be dismissed by the Commissioner without prejudice to commencing a non-expedited appeal pursuant to Education Law §310, Part 275 of this Title and this Part within 10 days after receipt of the decision dismissing such claims.