Decision No. 13,357

(February 9, 1995)

Behrens, Loew & Cullen, Esqs., attorneys for respondent, William M. Cullen, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to reopen Appeal of Regan (34 Ed Dept Rep 72), in which I dismissed petitioner's appeal of respondent's refusal to alter the Franklin Square Union Free School District's boundary with the Garden City Union Free School District. This application must also be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. 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 which was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen.

This application must be dismissed because it is untimely. My original decision was dated August 3, 1994, and this application was not brought until October 8, 1994, over one month later. Although the petition states that the application was made more than thirty days after the original decision, it makes only a brief reference to the "emergent hospitalization" of the petitioner "in the interim." The petition does not state the reason for the hospitalization, its duration or any other facts that would allow me to exercise my discretion to excuse its untimeliness.

The application must also be dismissed on the merits. I find no misapprehension of fact in the original decision. Nor do I find any new and material evidence which was not available at the time the decision was made. Petitioner refers to the 1994 Comprehensive Assessment Report and cites the relative scores on that report between the Garden City and Franklin Square school districts. However, I do not find those scores relevant to the issues raised in the original appeal. Thus, they provide no basis for me to reopen this matter.

The balance of the petition is an attempt to reargue my original decision. However, an application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Bach, 34 Ed Dept Rep 18; Application of Maloney, 33 id. 391; Application of Impellizzeri, 32 id. 295; Application of Burke, 28 id. 205).

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPLICATION TO REOPEN IS DENIED.

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