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Decision No. 13,569

Appeal of CATHERINE M. BIGGINS, from action of the Board of Education of the City School District of the City of New York regarding approval of reading materials.

Decision No. 13,569

(March 12, 1996)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Lawrence E. Becker and Marilyn Richter, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the City School District of the City of New York ("respondent" or "New York City") to include her reading materials on its list of approved textbooks. The appeal must be dismissed.

Petitioner is the author of a program entitled "Easy Steps to Reading Independence" (ESTRI), which is an educational product designed to upgrade the reading skills of reading disabled students through phonics. In October 1990, petitioner applied to respondent's Office of Textbook Review for inclusion of her materials on respondent's List of Approved Textbooks and Ancillary Materials Catalogue ("approved list"). The record indicates that petitioner's materials were somehow partially misplaced by respondent. On or about August 13, 1992, respondent released a "Submittal Form Textbooks" with approval for two parts of the ESTRI program. On November 13, 1992, respondent's director of the Office of Academic and Instructional Support informed petitioner that the remaining portions of the ESTRI program had been disapproved. Petitioner was advised that she had the option of a re-review by respondent's Textbook Review Board Appeals Committee. In February 1993, petitioner was informed by respondent's Office of Program and Curriculum Development that petitioner's materials were reviewed by the Appeals Committee who upheld the original disapproval.

On May 10, 1993, petitioner appealed to the Chancellor. In a letter dated May 28, 1993, the Chancellor upheld the disapproval of the ESTRI materials. Petitioner's publisher subsequently brought an Article 78 proceeding in State Supreme Court, Kings County, to annul the Chancellor's determination. On March 4, 1994, Justice Gilbert Ramirez dismissed the petition. Petitioner commenced this appeal on November 9, 1995.

Petitioner alleges that respondent's disapproval of her program was arbitrary, capricious and contrary to sound educational policy. Respondent raises a number of procedural objections, including the fact that the petition is not verified, is untimely and is barred by res judicata and collateral estoppel.

Before reaching the merits, I will address respondent's primary procedural objections. Respondent contends that the petition is defective because it was not verified as required by 8 NYCRR 275.5, which provides that "All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners..." While the copy of the petition received by my Office of Counsel contains a verification dated November 9, 1995, I note that the verification was filled out by the individual who served the petition, and not by petitioner, as required by the rules. It has been consistently held that when a petition is not properly verified, the appeal must be dismissed (Appeal of Frasier, 34 Ed Dept Rep 315; Appeal of Ballard-Jones, 33 id. 701; Appeal of Bd. of Educ., City School District of the City of New York, 31 id. 297).

The appeal must also be dismissed as untimely. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). This appeal, which challenges respondent's refusal to approve petitioner's program in 1993, is clearly not timely. Petitioner asserts that her late filing was due to ignorance of the appeal process and claims that respondent did not inform her of her right to appeal to the Commissioner. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Pitney Bowes, Inc., 31 Ed Dept Rep 290; Appeal of Casid, 30 id. 332). As respondent notes, it is under no obligation to inform petitioner of the Education Law '310 appeal process. Because I find no unusual circumstances to excuse the delay, the appeal must be dismissed as untimely.

In light of the foregoing disposition, it is unnecessary to reach the merits of the petition.