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Decision No. 14,267

Application to reopen the appeals of LARRY LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding payment for architectural services.

Decision No. 14,267

(December 17, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen Appeals of Lombardo (38 Ed Dept Rep 730, Decision No. 14,128), which dismissed, in a consolidated decision, a challenge to the district’s hiring of an architect without competitive bidding and the payment for his services. 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 that was not available at the time the decision was made.

As a threshold matter, the original appeals were dismissed as untimely. An appeal to the Commissioner under Education Law "310 must be brought within 30 days of the act or decision complained of (8 NYCRR "275.16). Petitioner’s claims concerning the award of the contract to the architect and the July 30, 1997 payment for the architect's services were commenced eleven and fourteen months, respectively, after the award of the contract and after payment had been made. Accordingly, they were untimely (Appeal of McDougall, et al., 37 Ed Dept Rep 611, Decision No. 13,941).

The primary basis upon which petitioner seeks reopening appears to stem from the consolidation of his two original appeals for decision. The appeals were consolidated as a result of the underlying similarity of facts and issues which they presented. Contrary to petitioner's assertions, such consolidation does not constitute a legitimate basis for reopening.

In the instant application, petitioner essentially seeks to reargue the facts surrounding respondent's alleged commingling of the district's capital project fund with the general fund. After thoroughly reviewing the records of the original appeals, including additional submissions by petitioner, I found that the payment to the architect from the capital project fund was accounted for and the capital project fund was properly segregated from the general fund. An application for reopening is not intended to provide an opportunity for reargument of a proper decision on the law (Application of Goldin, 37 Ed Dept Rep 603, Decision No. 13,938).