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Decision No. 13,146

Application to reopen the APPEAL OF A STUDENT WITH A DISABILITY, regarding the denial of an impartial hearing by the Board of Education of the Hyde Park Central School District.

Decision No. 13,146

(April 6, 1994)

Neal H. Rosenberg, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks to reopen my decision in Appeal of a Student with a Disability, 33 Ed Dept Rep 31. The application must be denied.

In the prior proceeding, petitioner appealed respondent's alleged denial of her request for an impartial hearing and challenged as improper a request by respondent's attorney that she provide the reasons for demanding the impartial hearing. The appeal was dismissed as academic because the record indicated that, despite any inquiries from the attorney, respondent, in fact, had scheduled the hearing in a timely manner. It was also noted that petitioner's son had since graduated.

In this application petitioner requests that I reopen my prior decision, asserting that "the Commissioner of Education did not address the issue before him" in the prior appeal. The application does not contain any further clarification of the basis for petitioner's request.

An application to reopen must present new material evidence not available at the time of the original proceeding or show that the prior proceeding was rendered under a misapprehension of fact (8 NYCRR 276.8[a]; Application of Robert, 31 Ed Dept Rep 330; Application of Nicastri, 30 id. 235). Petitioner's arguments in this application do not address or challenge the basis on which the prior appeal was dismissed. Nor does petitioner present any new evidence or establish that the prior decision was issued under a misapprehension of fact. Therefore, petitioner has failed to establish any basis for reopening that decision.

In essence, petitioner seeks an advisory opinion on issues that were not dispositive in the prior appeal. The Commissioner of Education does not issue advisory opinions (Application to Reopen the Appeal of Saegar v. Board of Education, Lindenhurst Union Free School District, 32 Ed Dept Rep 200; Appeal of Children with Handicapping Conditions, 31 id. 21). Accordingly, the application must be rejected.