Decision No. 12,930

(May 14, 1993)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent

SOBOL, Commissioner.--Petitioner seeks to reopen Decision No. 12890 (Appeal of Lamba, 32 Ed Dept Rep 473). The application must be granted.

In Lamba, I sustained petitioner's appeal and directed that respondent provide petitioner's son with transportation to and from the private school the student is attending. I did not order that petitioner be reimbursed for his expenses in providing transportation for his son during the time respondent refused to provide such transportation.

Petitioner contends that my omission with regard to his transportation expenses was based upon my alleged misapprehension that he was not seeking reimbursement in the original appeal. Petitioner alleges that he did in fact request such relief in his petition.

Respondent contends that the application to reopen should be denied because the petition did contain a specific request for reimbursement and that my omitting to address such issue constituted an implied denial of such relief. Therefore, respondent alleges, petitioner's application to reopen should be denied for failure to establish that my decision was made under a misapprehension of fact.

An application to reopen must present new, material evidence that was 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 Cuoco, 31 Ed Dept Rep 359). In my decision, I refrained from ordering reimbursement because it appeared from my reading of the petition that the only relief requested was an order directing respondent to provide transportation.

However, the application to reopen must be granted since it appears that such determination was based upon my misapprehension of petitioner's claim for relief. Petitioner asserts that a cryptic statement in the original petition about relief from a heavy financial burden for private transportation was intended as a request for reimbursement. I note that both petitioner and respondent agree that a claim for reimbursement was included in petitioner's original appeal. Furthermore, a liberal interpretation of the rules of pleading is appropriate in cases where, as here, petitioner is not represented by counsel and where there is no indication that the opposing party has been prejudiced (Appeal of Savastano, 32 Ed Dept Rep 114). Since respondent acknowledges that a claim for reimbursement was included in petitioner's appeal, respondent cannot claim prejudice from my consideration of such claim. In my original decision, I found that respondent was obligated to provide free transportation for petitioner's son to and from the Portledge School during the 1992-93 school year. Accordingly, petitioner should not be denied reasonable reimbursement based upon my misapprehension of his claim for relief. Petitioner has presented a bill from his transportation provider indicating a total of $800 for transportation provided from October 1992 through February 1993, inclusive. I do not find such amount to be unreasonable.

THE APPLICATION TO REOPEN IS GRANTED.

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