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Decision No. 17,502

Application to Reopen Appeal of T.S., on behalf of her daughter V.S., from action of the Board of Education of the Williamsville Central School District regarding student discipline.

Decision No. 17,502

(September 11, 2018)

Hodgson Russ LLP, attorneys for petitioner, Andrew Freedman, Esq., of counsel[1]

ELIA, Commissioner.--Petitioner, the Board of Education of the Williamsville Central School District, seeks to reopen Appeal of T.S. (57 Ed Dept Rep, Decision No. 17,233) which sustained in part T.S.’s appeal from a determination by petitioner to suspend her daughter, V.S.  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  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.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).  The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (8 NYCRR §276.8[a]; see Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395).

The application must be dismissed as untimely.  The underlying decision was issued on October 27, 2017. Petitioner commenced this proceeding on June 29, 2018, more than eight months later.  I note that petitioner previously challenged my determination in Appeal of T.S. (57 Ed Dept Rep, Decision No. 17,233) in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules (“Article 78”).  Shortly after filing that action, however, petitioner withdrew it.  Petitioner explains in the instant application to reopen that “after further weighing the costs that would be incurred in prosecuting that proceeding, the Board did not want to inefficiently use taxpayer money.”  To the extent petitioner suggests that this constitutes good cause to excuse the delay in bringing the instant application, I disagree (see 8 NYCRR §275.16).  While petitioner was free to change its mind regarding the costs and benefits associated with pursuing an Article 78 proceeding, this does not affect the 30-day time limitation for commencing an application to reopen pursuant to 8 NYCRR §276.8.  Therefore, petitioner’s application to reopen the prior decision must be denied.




[1] T.S., who was the petitioner in the underlying appeal, was represented by counsel in the underlying appeal.  Despite being served with a copy of petitioner’s application to reopen, neither T.S. or her counsel appeared in this proceeding.