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Decision No. 12,875

Application to reopen the appeal of NORMA SMITH, on behalf of Michael Smith, from action of the Board of Education of the City School District of the City of Batavia regarding student grades.

Decision No. 12,875

(January 8, 1993)

Stakel, Suttell, Found, Rybak & Earl, Esqs., attorneys for respondent, Daniel A. Rybak,

Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to reopen my decision in Appeal of Norma Smith, 32 Ed Dept Rep 109, in which she challenged a failing grade issued to her son.

Consistent with Commissioner's regulations, an application to reopen an appeal will be granted only in cases where the petitioner demonstrates that the prior 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" (8 NYCRR 276.8; Application of Peto, 32 Ed Dept Rep 119; Application of Coleman, 31 id. 211). An application for reopening is not intended to provide an opportunity for reargument of a prior decision (Application of Peto, supra; Application of Ferris, 30 id. 444).

Petitioner seeks to reopen my prior decision, alleging that it was rendered under a misapprehension of fact. Rather than show how the earlier decision misapprehended facts, however, petitioner has done nothing more than challenge the findings and conclusions therein. Although petitioner attempts to characterize her allegations as a misapprehension of fact, they merely represent an attempt to reargue the original case.

In addition, petitioner offers new evidence of respondent's supposed retaliation for the filing of her original appeal: respondent's omission of photographs of her twin sons from the high school yearbook. Since petitioner's new allegations have no bearing whatsoever on the prior appeal in which she challenged her son's failing grade, it does not constitute a basis for reopening my prior decision.