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Decision No. 13,080

Application to reopen the appeal of LESLIE LUBIN from action of the Board of Education of the City School District of the City of New York and Joseph A. Fernandez, Chancellor, with regard to a teacher appointment.

Decision No. 13,080

(December 31, 1993)

Eugene M. Kaufman, Esq., attorney for petitioner

Hon. Peter O. Sherwood, Corporation Counsel, attorney for respondents, Mercedes Colwin,

Esq., of counsel

SOBOL, Commissioner.--Petitioner applies to reopen my decision in Appeal of Lubin, 32 Ed Dept Rep 604, which dismissed his petition seeking appointment to a teaching position. For the reasons set forth below, the application must be denied.

In the initial appeal, petitioner alleged that he was licensed as both a Teacher Liaison for Adults and a Teacher of Basic Adult Literacy when he was interviewed with two other applicants for a teaching position. The hiring panel selected applicants other than petitioner for the open positions. Petitioner appealed. The appeal was dismissed because petitioner failed to prove that respondent's decision was improper. This application followed.

Applications for reopening are governed by 8 NYCRR 276.8:

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.

Petitioner contends that reopening is warranted because I misapprehended both the law and the facts in the first appeal. He argues that the interview process was an additional competitive examination for licensure that was not authorized by law. However, the issue of whether the interview was a competitive examination is the same contention petitioner presented in his original appeal. In essence, petitioner seeks to reargue the merits of his appeal, i.e., whether or not the interview process was a competitive examination. An application for reopening, however, is not intended to provide an opportunity for such reargument (Application of McCall, 32 Ed Dept Rep 565; Application of Bruce, A.M., 32 id. 573; Application of Vecchio, 31 id. 82).

Petitioner also argues that I misapprehended the facts of the matter since the original notice authorized a candidate to send a representative to accept an assignment or appointment and that the board of education never intended to interview candidates and only interviewed petitioner to reject him. In the original appeal, I noted that the form letter sent by respondent was easily misinterpreted since the notice advises candidates to report to receive "an assignment or appointment..." and I urged respondent to revise its form to make its process more clear. Once again, however, petitioner is seeking to reargue the issue that respondent's notice entitled him to an appointment. As noted above, such reargument is not a basis for granting petitioner's application to reopen his original petition.