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Decision No. 13,101

Application to reopen the appeal of DOROTHY BURTON from action of the Board of Education of the City School District of the City of New Rochelle regarding student grading.

Decision No. 13,101

(February 17, 1994)

McGuire, Kehl & Nealon, Esqs., attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to reopen Appeal of Burton, 33 Ed Dept Rep 211, which dismissed her petition challenging a final grade in a cosmetology course. The application must be denied.

Petitioner's initial appeal was dismissed on procedural as well as substantive grounds. I held that the petition was untimely since petitioner received the cosmetology grade in 1981 and commenced her appeal in 1993. The appeal was also dismissed on the merits since decisions regarding student grading rest with the classroom teacher and ultimately with the board of education. My review of the record indicated that respondent did not act improperly.

Applications for reopening are governed by 8 NYCRR 276.8. It provides:

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 that was not available at the time the original decision was made.

Petitioner has made no such showing here. She seeks to reopen a prior decision because her re-computation of her cosmetology hours is allegedly sufficient to give her a passing final grade. However, the recalculated cosmetology hours are not new evidence that was unavailable at the time the original appeal was made. Petitioner offers no reason for her failure to submit the recomputation of cosmetology hours in her original appeal and she had the burden of presenting all the available evidence and arguments in the original appeal to support her legal claims (Application of Thibodeau, 30 Ed Dept Rep 206; Application of Goldstein, 29 id. 329).

The remainder of petitioner's application consists of reargument as to why the original appeal should be sustained. An application for reopening is not intended to provide an opportunity for such reargument (Application of Friedman, 33 Ed Dept Rep 88; Application of Vecchio, 31 id. 82; Application of Board of Education of Monroe-Woodbury Central School District, 28 id. 115). Accordingly, I find no basis for reopening the prior decision.