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Decision No. 12,622

Application to reopen the appeal of WILLIAM and GWENDOLYN COLEMAN, on behalf of their children, SUDAN and BILLY D., from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 12,622

(December 30, 1991)

Frederick K. Brewington, Esq., attorney for petitioners

Jaspan, Ginsberg, Ehrlich, Schlesinger, Silverman and Hoffman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel

SOBOL, Commissioner.--This is an application to reopen my previous decision No. 12565, dated August 19, 1991 (31 Ed Dept Rep 49). In that decision, I dismissed petitioners' appeal and upheld the determination of respondent school district that petitioners are not residents of the district.

An application to reopen an appeal is governed by 8 NYCRR '276.8, which provides in pertinent part: "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." Appeal of Burke, 28 Ed Dept Rep 205; Matter of Brann, 25 id. 88. An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Ferris, 30 id. 444; Appeal of Burke, supra).

In this application, petitioners seek to reopen my earlier decision by presenting affidavits of their attorney, Mr. Brewington, petitioner Gwendolyn Coleman, and Beulah Broom, petitioners' tenant at 470 Coolidge Avenue. Although petitioners presented no reply to the district's proof in the original appeal (31 Ed Dept Rep at 52), they now seek to relitigate factual matters which were resolved in the first appeal. There is no allegation or showing that any of the factual material presented on this application was not available at the time the original appeal was before me. Nor is there any showing that I have misapprehended the facts.

Even if I were to ignore the regulations and accept this attempt at relitigation, I would not change my determination. Mr. Brewington's affidavit states that the affidavit of Mrs. Coleman disputes respondent's contention that there is only a two-bedroom apartment available to the Colemans at 470 Coolidge Avenue. Mrs. Coleman's affidavit does not in fact make that claim, but merely says: "Further, our house has a [sic] upstairs, ground floor and basement the Schools [sic] report that we have two only two [sic] bedrooms is absurd. We use the basement as many neighbors and families do." Such a statement does not directly address or contradict the facts as alleged by respondent. In the same fashion, the affidavit of Beulah Broom, petitioners' tenant, does not directly state that the Colemans live at 470 Coolidge Avenue, but merely says: "They reside in the district and have every right to attend the school." Even if I were to accept them, these affidavits do not sufficiently contradict the conclusions I reached in my earlier decision.

One other aspect of this application is worthy of comment. All three affidavits in support of this application suggest that the actions of the Malverne Union Free School District were motivated by some antipathy toward petitioners based upon their race. However, these suggestions are completely unsupported in the record, and are entirely gratuitous. Accordingly, they provide no basis for reopening of my earlier decision.