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Decision No. 18,061

Application to reopen the Appeal of R.A. and D.A., on behalf of their niece, from action of the New York City Department of Education regarding residency.

Decision No. 18,061

(December 16, 2021)

Brain Injury Rights Group, attorneys for petitioner, Peter G. Albert, Esq., of counsel

Georgia Pestana, Corporation Counsel, attorney for respondent, Nathaniel R. Luken, Esq., of counsel

ROSA., Commissioner.--Petitioners seek to reopen Appeal of R.A. and D.A. (61 Ed Dept Rep, Decision No. 18,047), which dismissed petitioners’ appeal from the determination of the New York City Department of Education (“respondent”) that their niece (the “student”) is not a district resident.  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner.  The Commissioner will not grant an application to reopen absent a showing that:  (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]).  An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the 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).

Petitioners have not met the standard for reopening the underlying appeal.  In the underlying petition, petitioners argued that the appeal was late because “COVID-19 prevented [them] from being able to prepare these papers and to obtain a new lease.”  I considered and rejected this argument in the underlying decision.  Petitioners now appear to argue that they did not receive, or were unable to submit, the original petition in a timely manner due to poor residential internet access in The Bahamas.[1]  Petitioners did not raise that argument in the underlying petition; as such, they are precluded from doing so in this application (e.g. Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314).  Similarly, petitioners cannot raise the new legal argument that respondent waived its residency determination when it convened a June 2020 CSE meeting (see 8 NYCRR 275.3 [a], 275.14 [a]).  Therefore, petitioners have not established grounds to reopen the underlying decision in accordance with the limited standards set forth in 8 NYCRR 276.8.




[1] While petitioners raised a similar contention in their reply in the underlying appeal, the reasons for failing to commence a timely appeal must “be set forth in the petition” (8 NYCRR 275.16; Appeal of Lyons-Birsner and Birsner, 57 Ed Dept Rep, Decision No. 17,160).