Decision No. 12,665

(March 20, 1991)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Denyce Holgate-Wilkins, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks a reopening of my decision in Appeal of Cuoco (31 Ed Dept Rep 95). The application must be granted in part.

SOBOL, Commissioner.--Petitioner was a tenured teacher formerly employed by respondent Community School District No. 22. My prior decision involved charges pursuant to Education Law '3020-a arising in part from petitioner's 101 absences between September 1988 and April 1989, and five instances of unauthorized early departure from work. In that decision, I dismissed the specifications charging petitioner with absences occurring more than six months before April 12, 1989 pursuant to Education Law '2590(7)(c) (Appeal of Cuoco, supra). An application to reopen must present new, material evidence not available at the time of the original proceeding, or show that the original decision was rendered under a misapprehension of fact (8 NYCRR 276.8[a]; Application of Robert, 31 Ed Dept Rep ___, Decision No. 12656, dated February 27, 1992; Application of Macchia, 29 Ed Dept Rep 314). Respondent preferred charges against petitioner on April 12, 1989. On the application before me, petitioner correctly observes that the prior decision contains an inadvertent reference to a specification charging petitioner with unauthorized early departure on September 8, 1988. Because this incident occurred more than six months before April 12, 1989, it should have been dismissed as well. The application shall be granted, and the prior order modified to reflect the dismissal of this specification.

Petitioner's remaining arguments set forth her disagreement with the conclusions reached in the prior decision. Reargument of the legal issues, however, is not a basis for reopening (Application of Macchia, 29 Ed Dept Rep 314, 316, supra). Petitioner has not presented new or material evidence which was not available at the time of the original decision, nor, with the exception noted above, has she demonstrated that the prior decision was rendered under a misapprehension of fact.

THE APPLICATION IS GRANTED, and the prior order modified, to reflect dismissal of the specification charging petitioner with unauthorized early departure on September 8, 1988. The application is denied in all other respects, and the prior order, upholding the hearing panel's recommendation that petitioner be terminated from her position, shall stand.

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