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Decision No. 14,674

Application to reopen the appeal of C.Z., on behalf of his son, A.Z., from action of the Board of Education of the New Paltz Central School District regarding student discipline.

Decision No. 14,674

(December 20, 2001)

Kossover Law Offices, LLP, attorneys for petitioner, Andrew Kossover, Esq., of counsel

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

Petitioner seeks to reopen Appeal of C.Z. (40 Ed Dept Rep ____, Decision No. 14,585), concerning the suspension of his son. 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.

In the underlying appeal, conflicting testimony at the superintendent"s hearing raised issues of witness credibility. After hearing the testimony and observing the demeanor of the witnesses, the superintendent determined that petitioner"s son had engaged in the charged conduct. I refused to substitute my judgment for that of the superintendent on witness credibility and dismissed the appeal.

Petitioner"s application to reopen is based upon the contention that his attorney never stipulated to the transcript of the superintendent"s hearing. Petitioner"s attorney asserts that the tape recording of the hearing was inaudible. At the direction of my Office of Counsel, respondent"s attorney prepared a transcript of the tape. The transcription included the hand-written corrections of respondent"s attorney. Respondent"s attorney sent a copy of the tape and transcript to petitioner"s attorney, offering him the opportunity to listen to the tape, review the transcript and make any changes. Petitioner"s attorney declined to do so, returning the tape and transcript to respondent"s attorney.

Petitioner"s attorney claims he heard nothing further from respondent or my office until June 25, 2001, when he received a copy of the decision dismissing the appeal. Respondent claims that by letter dated April 4, 2001, its attorney sent a copy of the transcript, with the hand-written corrections, to my office. Petitioner"s attorney was copied on the letter, but claims he never received it.

Regardless of whether petitioner"s attorney received the April 4 letter, or agreed to stipulate to the submitted transcript, I must deny this application. In the underlying appeal, petitioner"s attorney was provided with an opportunity to review the transcript but declined to do so. Furthermore, petitioner"s attorney has had ample opportunity to review the transcript following my decision. Despite this opportunity, he fails to cite even one example of how the transcript is in any way inaccurate or misleading. Absent such evidence, I cannot find that the original decision was rendered under a misapprehension of fact.