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Decision No. 12,750

Appeal of KENNETH R., on behalf of his daughter, Deneen R., from action of the Board of Education of the Garden City Union Free School District regarding residency.

Decision No. 12,750

(July 17, 1992)

Cullen and Dykman, Esqs., attorneys for respondent, Thomas B.Wassel, Esq., and Carl

A. Laske, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that he is not a resident of the Garden City Union Free School District and excluding his daughter from attendance in its public schools. This is the second time petitioner has appealed this residency determination, which I previously upheld in Appeal of Kenneth R., 30 Ed Dept Rep 297. The appeal must be dismissed.

Because petitioner is appealing a prior determination of the Commissioner of Education, this appeal will be treated as an application to reopen. An application to reopen an appeal is governed by 8 NYCRR '276.8, which requires such applications to be served within 30 days of the decision sought to be reopened (Application of the Bd. of Educ. of the Monroe-Woodbury Central School District, 28 Ed Dept Rep 115; Application of Young, 28 id. 90). Petitioner commenced this appeal on September 10, 1991, more than six months after my prior decision had been issued. Petitioner attempts to excuse his delay by claiming that he believed he would be returning to live in Garden City and that further legal action would, therefore, be unnecessary. Because petitioner offers no evidence of his attempts since my prior decision to relocate to Garden City, his explanation is insufficient to excuse the delay. Therefore, the appeal must be dismissed as untimely.

Even if the appeal had been timely, I would still be constrained to dismiss it on the merits. Section 276.8 provides:

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 Coleman, 31 Ed Dept Rep 211; Appeal of Burke, 28 id. 205; Appeal of Brann, 25 id. 88)

Petitioner presents no evidence that the decision was rendered under a misapprehension of facts and offers no new and material evidence which was unavailable at the time the original decision was made. Although petitioner continues to assert he is homeless because he hopes to return to Garden City and is clearly dissatisfied with his current living arrangement, he also admits that his daughter was living with him continuously in Queens since he sold his house in July 1988, the date of his original appeal. He also alleges for the first time that he was illegally denied an opportunity to rent an apartment in Garden City in July 1990. While not determinative, I note that this information was available at the time of the original appeal and, therefore, will not be considered here.

Otherwise, petitioner reiterates in this petition essentially the same arguments raised and rejected in the original appeal. An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Appeal of Coleman, supra; Application of Ferris, 30 id. 444; Appeal of Burke, supra). Assuming that petitioner intends to return to Garden City, the facts in this case establish, nonetheless, that he sold his home there in 1990 and has been living outside the district since that time (Appeal of Kenneth R., supra). Since the basis of my earlier original decision is applicable today, petitioner provides no legal basis to reopen the prior decision and the application must be dismissed.