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Decision No. 17,951

Application to reopen the Appeal of M.S., on behalf of her daughter M.H., from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 17,951

(December 22, 2020)

Ingerman Smith, LLP, attorneys for respondent, Edward H. McCarthy, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner seeks to reopen Appeal of M.S. (60 Ed Dept Rep, Decision No. 17,926), which dismissed petitioner’s appeal from a determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) to suspend her daughter M.H. (“the student”).  The application must be denied. 

During the 2019-2020 school year, the student attended respondent’s senior high school and was disciplined for possession of weapons and paraphernalia, resulting in a one-year suspension.  In Appeal of M.S., petitioner sought to expunge the student’s suspension; however, the Commissioner dismissed the appeal on the grounds that petitioner had failed to serve respondent with a copy of the petition.

Petitioner requests that the decision be reopened.  Petitioner argues that personal service could not be effectuated on respondent due to the COVID-19 pandemic.  Petitioner also maintains that “the option to effectuate ... mail service was not available” when she “last visit[ed]” the website for my Office of Counsel on April 6, 2020, “prior to mailing the appeal” on April 18, 2020.  Petitioner further argues that respondent was not prejudiced by her failure to serve the petition because the district is “now aware of the issues” and that the student’s suspension could “negatively impact” the student.

Respondent maintains that petitioner fails to meet the standard for reopening, as she merely reargues issues raised in the prior appeal and raises new legal arguments that should have been included in a reply.

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).

Petitioner has not met the standard for reopening the underlying appeal.  Petitioner’s application seeks to reargue her failure to serve the petition on respondent.  As respondent maintains, petitioner should have raised her instant contentions concerning service in a reply in the underlying appeal (see 8 NYCRR §§275.3[a], 275.14[a]).  Additionally, petitioner’s application reasserts the position presented in her appeal that the student’s suspension was excessive.  Petitioner does not contend that the underlying decision was based on a misapprehension of fact, nor does she provide new and material evidence that was not available at the time the decision was made. 

Therefore, petitioner has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR §276.8.