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Decision No. 14,129

Application to reopen the appeal of MARY K. SADEWATER from action of the Board of Education of the City School District of the City of Buffalo regarding a teacher examination.

Decision No. 14,129

(May 13, 1999)

Michael B. Risman, Corporation Counsel, attorney for respondent, Patricia A. Pancoe, Esq., of counsel

MILLS, Commisioner.--Petitioner seeks to reopen Appeal of Sadewater, 37 Ed Dept Rep 621, which dismissed petitioner's appeal of the results of a teacher examination administered by the City School District of the City of Buffalo ("respondent"). The facts underlying this application are set forth in the original decision. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence which was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen.

Respondent contends that petitioner's application is untimely. The original decision in this appeal was rendered on May 18, 1998. Petitioner attempted to reopen the original decision by a letter to me, dated June 18, 1998. However, that letter was returned to petitioner because it did not comply with my regulations, including the requirement to provide my Office of Counsel with an affidavit proving service of a copy of the petition on respondent (8 NYCRR ""275.9 and 276.8). Subsequently, petitioner initiated this application to reopen the decision by service of a petition on respondent on July 17, 1998, and provided my Office of Counsel with an affidavit proving such service. Because the application was not properly initiated until nearly two months after the original decision, it is untimely and must be denied (Application of a Child Suspected of Having a Handicapping Condition, 31 Ed Dept Rep 197).

Petitioner also attempts to reargue the untimeliness of her original appeal and the denial of class appeal status. Petitioner claims that the original decision should not have been dismissed for untimeliness because a State Education Department staff person advised her by letter of the right to file an appeal. This fact was before me in petitioner’s original appeal and the instant application fails to demonstrate a misapprehension of this or any other fact in my original decision. Petitioner also reargues the reasons for requesting class appeal status. Mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application of Impellizzeri and Petrides, 32 Ed Dept Rep 295; Application of Gordon, 29 id. 417). In reference to both issues, I do not find that petitioner provides new material facts that were not available when she brought the original petition or that there was a misapprehension of the facts in my original decision.

The balance of the application is an attempt to reargue the original appeal on the merits, namely petitioner's contention that respondent's selection process through its teacher examination was arbitrary and capricious. However, an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Varghese, 35 Ed Dept Rep 50; Application of Bach, 34 id. 18).

I have reviewed petitioner's remaining contentions and find them to be without merit.