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Decision No. 12,921

Application to reopen appeal of FRANK C. ARRICALE from action of the Board of Education of Community School District No. 11 of the City School District of the City of New York regarding a contract of employment.

Decision No. 12,921

(April 22, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel

SOBOL, Commissioner.--Petitioner applies for reopening of the decision in Appeal of Arricale, 32 Ed Dept Rep 365, which dismissed his petition seeking reinstatement to the position of superintendent of respondent district for one year. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education states that any party may apply to reopen a decision of the Commissioner. An application to reopen is addressed solely to the discretion of the Commissioner, and the party seeking reopening must show that the decision which is the subject of the 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 Robert, 31 Ed Dept Rep 330; Application of Nicastri, 30 id. 235).

Petitioner's appeal was dismissed because it had not been commenced within the time limit set forth in '275.16 of the Regulations of the Commissioner of Education. The record indicated that respondent voted not to renew petitioner's employment as superintendent on July 7, 1992. Petitioner, however, did not serve his notice of petition and petition upon respondent until August 26th. Petitioner offered no excuse for his failure to commence the appeal in a timely manner.

In this application to reopen, petitioner maintains that the decision was rendered under a misapprehension as to the facts. Petitioner contends that while respondent voted not to renew his contract on July 7, 1992, he was not notified of that action at that time. Petitioner further maintains that there was no official notice of the board's action until September 22, 1992, when respondent presented and approved minutes of the July 7th board meeting.

In the original petition, petitioner repeatedly refers to respondent's July 7th decision not to renew his contract. In light of those admissions, I find no merit to this new contention that the time to bring this appeal did not begin to run until September 22. The fact that respondents did not send a formal document to petitioner informing him of its decision is irrelevant, since petitioner was clearly aware of that decision. In addition, petitioner did not offer any excuse in his original petition for his untimely appeal. Petitioner's request to reopen this matter must, therefore, be denied.