Application to reopen the Appeal of N.I., on behalf of her daughter S.I., from action of the New York City Department of Education regarding immunization.

Decision No. 17,262

(November 17, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Lesley Berson Mbaye, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks to reopen the Appeal of N.I., 57 Ed Dept Rep, Decision 17,176, which dismissed petitioner’s challenge to the determination of the New York City Department of Education (“respondent”) that her daughter, S.I. (“the student”) is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164.  The application must be denied.[1]

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 (Application to reopen the Appeal of Lanzilotta, 48 Ed Dept Rep 450, Decision No. 15,911; Application to reopen the Appeal of Zulawski, 47 id. 191, Decision No. 15,664).

Petitioner has not established any basis for reopening the prior decision.  As noted above, §276.8 of the Commissioner’s regulations provides that applications to reopen 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.  Petitioner has not made the requisite showing here. The arguments in her application are restatements of arguments made in her original appeal.  Petitioner merely states that she believes that she has met her burden of proof and fails to identify a single alleged factual error.  Petitioner has not alleged, nor does the application contain, new material evidence that was not available at the time the decision was made.

THE APPLICATION TO REOPEN IS DENIED.

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