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Decision No. 16,446

Appeal of ADVANCED THERAPY, OT, PT, SLP, ET AL PLLC, from action of the New York State Education Department regarding a preschool special education program.

Decision No. 16,446

(January 7, 2013)

Pattison, Sampson, Ginsberg & Griffin, P.C., attorneys for petitioner, Michael E. Ginsberg, Esq., of counsel

KING, JR., Commissioner.--Petitioner, a provider of preschool education services, challenges a determination allegedly made by a State Education Department employee denying its program modification request made pursuant to Education Law §4410.  The appeal must be dismissed.

The appeal must be dismissed for lack of jurisdiction.  It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Appeal of the School for Language and Communication Development, 46 Ed Dept Rep 536, Decision No. 15,586; Appeal of Friends to the Elderly, Youth & Family Ctr., Inc., 46 id. 227, Decision No. 15,489; Appeal of a Student with a Disability, 46 id. 23, Decision No. 15,429).  Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

Consequently, I lack jurisdiction to entertain petitioner’s appeal.