Application to reopen the Application of Carol Gillen for the removal of Nicholas Mauro as a member of the Board of Education of the City School District of the City of Middletown.

Decision No. 16,112

(July 27, 2010)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Semira Ansari, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks to reopen the Application of Gillen, 49 Ed Dept Rep ___, Decision No. 16,030, which denied her petition to remove Nicholas Mauro as a member of the Board of Education of the City School District of the City of Middletown.  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  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 that was not available at the time the decision was made.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395; Application to reopen the Appeal of Johnson, 45 id. 275, Decision No. 15,320).

Petitioner alleges that I misapprehended the facts by excluding her reply.  Petitioner’s allegation is unfounded.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  As stated in the underlying decision, I reviewed the reply and did not consider those portions containing new allegations or exhibits that were not responsive to new material or affirmative defenses in the answer.  I considered all other portions of the reply.

Petitioner also contends that the application should be reopened because I misapprehended the facts regarding the significance of respondent’s argument that he relied on the advice of counsel.  Petitioner’s argument is again unfounded.  Respondent’s answer in the underlying application asserts his reliance on the advice of counsel as an affirmative defense. Petitioner responded to this affirmative defense in her reply and I fully considered petitioner’s arguments.

Petitioner objects to various statements in my decision and contends that they constitute a misapprehension of fact.  Specifically, petitioner maintains that a statement that the MTA forum was taped when the taping was “make-shift” and a statement that “respondent improperly manipulated district elections” when he “intended” to manipulate district elections require reopening.  I find that these objections do not present evidence of a misapprehension of fact and are an insufficient basis upon which to reopen the underlying decision.

Petitioner has not demonstrated that the decision in that application was rendered under a misapprehension of fact, nor has she presented any new material evidence that was not available at the time the decision was made.  Essentially, she is attempting to reargue the original application.  It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening (Application to reopen Appeal of T.L. and W.L., 47 Ed Dept Rep 123, Decision No. 15,647; Application to reopen Appeal of Kushner, 44 id. 116, Decision No. 15,116; Application to reopen Appeal of Satler, 41 id. 293, Decision No. 14,690).

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE.