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Decision No. 12,778

Application to reopen the appeal of MARY PETO, on behalf of Christopher and Katrina Peto, from action of the Board of Education of the Watertown City School District relating to transportation policy.

Hiscock & Barclay, Esqs., attorneys for petitioner, Keith B. Caughlin, Esq., of counsel

O'Hara & O'Connell, P.C., attorneys for respondent, Laura J. Witkowski, Esq., of counsel

Decision No. 12,778

(August 18, 1992)

SHELDON, Acting Commissioner.--This is an application to reopen decision No. 12,677, dated April 3, 1992 (31 Ed Dept Rep ). In that decision, the Commissioner dismissed petitioner's appeal, which challenged respondent's refusal to modify its transportation schedules to conform to changes in dismissal times proposed by certain nonpublic schools.

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." Application of Coleman, 31 Ed Dept Rep 211; Application of Burke, 28 id. 205. 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).

The basis for petitioner's application is that one of the six nonpublic schools involved in the original appeal, Sacred Heart School, actually dismissed classes at 2:20 p.m. during the 1990-1991 and 1991-1992 school years, a fact which petitioner admits was not made clear in her original petition.

The petition in the original appeal was verified July 3, 1991, approximately nine months after the beginning of the 1990-1991 school year, but it fails to allege that Sacred Heart School had actually changed its dismissal time. In this application for reopening, petitioner alleges that in late August 1990, parents of Sacred Heart students received a document, which she attached, indicating a dismissal time of 2:20 p.m. Although this information was allegedly available long before the original appeal was commenced, there is no explanation as to why it was omitted. Under these circumstances, reopening is not appropriate.