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Decision No. 16,556


 Appeal of the BOARD OF EDUCATION OF THECENTER MORICHES UNION FREE SCHOOL DISTRICT from action of the Board of Education of the East Moriches Union Free School District regarding the payment of non-resident tuition.

Decision No. 16,556

(September 30, 2013)

Lamb & Barnosky, LLP, attorneys for petitioner, Robert H.Cohen, Esq., of counsel

Smith Finkelstein, Lundberg, Isler and Yakaboski, LLP,

attorneys for respondent, Frank A. Isler, Esq., of


KING, JR., Commissioner.--Petitioner, the Board of Education of the Center Moriches Union Free School District, challenges the refusal of the Board of Education of the East Moriches Union Free School District (“respondent”) to pay certain non-resident tuition allegedly due and owing. The appeal must be dismissed.

During the period relevant to this appeal, respondent’s resident students in grades 9-12 were educated by petitioner pursuant to a series of one-year contracts in which petitioner charged respondent according to the non­resident tuition formula set forth in §174.2 of the Commissioners regulations (8 NYCRR §174.2). Petitioner would bill respondent monthly based upon the estimated non­resident tuition rates published by the New York State Education Department (the “Department”). Respondent paid petitioner upon receiving a monthly invoice, and then the billing was reconciled at the end of each school year following the Department’s issuance of the final non­resident tuition rate (the “final rate”) which is based upon petitioner’s audited financial information.

At issue herein are moneys allegedly due and owing by respondent for the 2008-2009 and 2009-2010 school years. For these two contract years, respondent paid the reconciled final invoices when submitted in April, 2011, and “closed its books” on non-resident tuition costs for the subject years. Thereafter, however, petitioner discovered certain accounting errors in the financial

information it previously provided to the Department which resulted in the issuance of revised final rates for the two subject years. Based upon the revised final rates, on or about July 6, 2011, petitioner submitted to respondent a revised final invoice in the amount of $42,153.55 for the 2009-2010 school year, and a revised final invoice in the amount of $8,805.45 for the 2008-2009 school year.

By letter dated July 28, 2011, respondent acknowledged that it received the revised final tuition invoices, but informed petitioner that it already paid the final bills and that the “new invoices are untimely and therefore must be rejected.” In a letter dated September 7, 2011, petitioner disagreed with respondent’s position and requested an opportunity to meet in an effort to “explore a resolution of this matter”. The letter further indicated that if no amicable resolution can be reached by September 14, 2011, petitioner would have no choice but to pursue its legal remedies. The following week the parties apparently swapped proposals to settle the disputed invoices. On September 14, 2011, respondent informed petitioner that its latest counter-proposal was not acceptable. Consequently, petitioner commenced this appeal by service of a copy of the petition on respondent on October 11, 2011.

Petitioner contends that there was an error in the initial calculation of the final rate resulting in respondent owing $42,153.55 for the 2009-2010 school year, and $8,805.45 for the 2008-2009 school year.

Respondent argues, inter alia, that the appeal is time-barred and petitioner’s claim for relief is prohibited by §174.2(a)(6) of the Commissioner’s regulations.

Initially, I must address a procedural issue. Following several extensions of time in which to serve the parties’ respective papers, petitioner’s memorandum of law was to be served by January 3, 2012. On January 4, 2012 - one day after the memorandum of law was due – petitioner contacted the Commissioner requesting additional time in which to file. Petitioner was immediately advised that the Commissioner may permit an untimely memorandum of law upon written application pursuant to §276.4(a) setting forth good cause for the delay and demonstrating the necessity of such memorandum to a determination of the appeal. Petitioner ultimately filed such an application on March 20, 2012, together with its memorandum of law. Upon reviewing the application, which respondent has not

opposed, I have accepted petitioner’s untimely memorandum of law.

Nevertheless, the appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR§275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No.15,879).

Here, petitioner argues that its superintendent’s letter dated September 7, 2011, which requested an opportunity to discuss a resolution of the matter, was a request for respondent to reconsider its denial of the invoices that respondent entertained. Therefore, petitioner reasons that the 30-day time period commenced when respondent rejected petitioner’s counter-proposal on September 14, 2011, because this was actually a decision on the merits following respondent’s reconsideration of their application for payment (see e.g., Appeal of Eberhardt, 25Ed Dept Rep 263, Decision No. 11,573). I disagree.

First, assuming, arguendo, that respondent’s September7, 2011, letter was a request for reconsideration, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of the Board of Education of the Manhasset Union Free School District, 49Ed Dept Rep 428, Decision No. 16,072; Appeal of Lippolt, 48id. 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851). In any event, I do not agree that respondent’s rejection of petitioner’s counter­proposal on September 14, 2011, was a decision on the merits following reconsideration of petitioner’s application for additional payments.

Rather, petitioner’s September 7, 2011 letter amounted to an invitation to settle the matter to each party’s mutual satisfaction and avoid litigation. Although the record fails to indicate exactly what the parties’ respective proposals were, petitioner’s own reply papers state respondent offered to make a partial payment of the disputed claim, which was not acceptable to petitioner; and petitioner thereafter countered with what respondent characterizes as a “take or leave it” proposal.

On the record before me, respondent’s letter dated July 28, 2011, clearly and unequivocally denied petitioner’s request for payment of the revised final

tuition invoices. Instead of appealing within 30 days of respondent’s rejection of its revised final invoices, however, petitioner waited until September 7, 2011, to issue a letter requesting a meeting with respondent to engage in settlement negotiations.

Petitioner further asserts that these settlement discussions with respondent constituted good cause for the delay. However, petitioner’s September 7, 2011, letter inviting settlement discussions was issued after the 30-daytime limit in which to commence an appeal from respondent’s July 28, 2011, decision had already expired. Even assuming for the sake of argument that ongoing settlement negotiations might afford an excuse for delay in a proper case, petitioner has not proven that its delay in commencing this appeal is attributable to settlement negotiations.

Accordingly, I find that the subsequent settlement discussions between the parties did not establish good cause excusing petitioner’s failure to commence this appeal in a timely fashion (see, Noisette v. New York City Tr.Auth., 20 AD2d 925 [an agreement or understanding to extend the time in which to file does not arise by reason of abortive settlement negotiations between the parties]).

In light of this disposition, I need not address the parties’ remaining contentions.