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Decision No. 12,612

Application to reopen the appeal of ANTHONY S. AMBROSIO from action of the Board of Education of the Lindenhurst Union Free School District No. 4 relating to school budget.

Decision No. 12,612

(December 12, 1991)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen Decision No. 12505, dated May 28, 1991. In that decision, I dismissed the petition on mootness grounds. For the reasons set forth herein, this application must be denied.

In the original appeal, petitioner contended that respondent intended to impose a fee upon district residents as a prerequisite for their children to participate in interscholastic sports. I held that the appeal had been rendered moot by the voters' approval of a budget for the 1990-91 school year. The budget included appropriations for various activities, including interscholastic sports.

Petitioner now alleges that my decision was rendered under a misapprehension of fact and that it should be reopened. In support of this contention, petitioner alleges that the minutes of a meeting held by respondent demonstrate that a fee schedule for participation in interscholastic sports was actually approved.

As a threshold matter, petitioner's application to reopen is untimely. Section 276.8 requires that an application to reopen a previous appeal must be made within 30 days after the date of the decision sought to be reopened. In this case, the original decision was issued on May 28, 1991, and this appeal was not commenced until on or about July 26, 1991, beyond the 30-day time limit.

Moreover, petitioner has not demonstrated sufficient grounds to warrant reopening. 8 NYCRR '276.8 governs applications for reopening and provides that such applications are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that a decision 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. In this case, whether or not respondent voted to approve the fee schedule, the fact remains that approval of the budget renders the issue sought to be raised by petitioner moot.