Decision No. 14,121

(May 3, 1999)

MILLS, Commissioner.--Petitioner, a publisher of educational materials, appeals the refusal of the Board of Education of the City School District of the City of New York ("respondent") to include her reading materials in its Approved Textbooks and Ancillary Materials Catalog. The appeal must be dismissed.

Petitioner is the publisher of a program entitled "Easy Steps to Reading Independence" (ESTRI), which is an educational product designed to upgrade the reading skills of reading disabled students through phonics. The program consists of 16 items, two of which were approved by respondent's Instructional Materials Review Unit for inclusion in respondent's Catalog of approved instructional materials in 1992, while the others were disapproved. The material facts may be found in Appeal of Biggins (35 Ed Dept Rep 357).

Petitioner in this appeal also challenges respondent's refusal to list the components of the ESTRI program in its catalog of approved instructional materials. Respondent raises several factual points and several affirmative defenses, including untimeliness, res judicata, and collateral estoppel.

It appears from the record before me that two of the 16 components of the ESTRI program were originally approved for use in respondent's schools in August 1992. However, under respondent's instructional materials review policy, such approval only remains valid for a period of five years, and there is no indication that the original approval of those two items has ever been renewed.

More importantly, respondent points out that in September 1993, petitioner commenced an Article 78 proceeding in Supreme Court, Kings County (In the Matter of the Application of Delores J. Schneider and Associates v. Board of Education of the City of New York and Ramon C. Cortines, Index No. 32231/93), seeking the same relief she now demands in this appeal. In that Article 78 proceeding, Catherine M. Biggins, the author of the program, submitted a supporting affidavit. The Article 78 proceeding was dismissed by Supreme Court on February 15, 1994, and there is no indication that Ms. Schneider appealed that decision.

In addition, Appeal of Biggins, supra, was commenced before the Commissioner of Education on November 9, 1995. The petition in that appeal made no mention whatsoever of the prior Article 78 proceeding brought by petitioner Delores J. Schneider in 1993. In my decision in Biggins on March 12, 1996, I found that the appeal challenging respondent's refusal to approve or list this program was "clearly not timely" (35 Ed Dept Rep at 359). Because this appeal challenges the same action and seeks the same relief, it also is clearly untimely.

Petitioner attempts to argue that a letter dated June 4, 1997, from Louis P. Benevento, on behalf of respondent's Chancellor, somehow constitutes a new refusal to list the ESTRI materials in respondent's catalog of approved instructional materials and that her appeal is therefore, timely. However, that letter merely states that respondent is unable to list any materials in its catalog of approved instructional materials which have "been previously reviewed and rejected by the Instructional Materials Review Unit." Respondent's original refusal to list the materials in question occurred in 1992.

It is clear that petitioner has engaged in a lengthy correspondence over several years with various district offices in an effort to reverse the 1992 determination disapproving most of the ESTRI materials. Her May 19, 1997, letter to the Chancellor and Mr. Benevento's June 4, 1997, response appears to be the most recent round of such correspondence. Such efforts to gain reconsideration of an earlier determination, in this case made in 1992, do not extend the time within which an appeal must be brought (Appeal of Fullam, et al., 38 Ed Dept Rep 227; Appeal of Ytuarte, et al., 36 id. 238; Appeal of Goodman, 35 id. 93).

In view of this disposition, it is unnecessary to discuss the other claims of the parties, which I find to be without merit.

THE APPEAL IS DISMISSED.

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