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Decision No. 12,755

Appeal of FRANK A. BRONICO from action of the Board of Education of the North Rockland Central School District regarding retirement benefits.

Decision No. 12,755

(July 23, 1992)

O'Connell & Riley, Esqs., attorneys for respondent, James K. Riley, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to provide him with group health insurance. The appeal must be dismissed.

Petitioner commenced this appeal on May 20, 1992. By letter dated June 22, 1992, after the time to answer had expired, counsel for respondent requested an extension of time to answer the petition. On June 23, 1992, my Office of Counsel apprised respondent in writing of ''275.9 and 275.13 of the Regulations of the Commissioner of Education, informing him:

if an answer is received before a decision has been rendered, the Commissioner may, in his discretion, consider its contents. The decision-making process, however, will not be delayed until an answer is received.

Respondent subsequently served an answer on July 1, 1992. Respondent has failed, however, to provide an explanation for its delay warranting an exercise of my discretion to consider the late answer. Consequently, the factual allegations set forth in the petition are deemed to be true (8 NYCRR 275.11; Appeal of Walker, 31 Ed Dept Rep 30).

Appeals to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16; Appeal of Walker, supra). The record indicates that petitioner retired from service in the North Rockland Central School District on January 12, 1983. He apparently retired on "accidental disability" following a work-related injury. Years later, petitioner requested respondent to provide him with group health insurance. Respondent denied his request by letter dated November 14, 1991.

This appeal was not commenced until May 20, 1992. Petitioner asks me to excuse his delay, stating,

[t]his petition was not filed within the 30 day time period because it only recently came to my attention that other employees have received free benefits without meeting their contractual requirements before retirement.

While this explanation might account for petitioner's eight-year delay in requesting benefits, it does not justify the nearly six-month delay between petitioner's receipt of respondent's letter denying his request, and the commencement of this appeal. In the letter of November 14, 1991, respondent acknowledged that the board of education has, in exceptional cases, granted retirement health benefits to employees who otherwise would not be eligible for coverage, but stated that petitioner's circumstances did not constitute the type of "special factors" present in the other cases. Upon receipt of that letter, petitioner was plainly on notice that other employees had received health benefits in retirement. The explanation of his delay in commencing this appeal is therefore without basis, and the appeal must be dismissed as untimely.