Application to reopen the Appeal of GUSTAVO MATLIS, on behalf of his son MARC, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation. 

Decision No. 17,396

(May 29, 2018)

Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks to reopen the Appeal of Matlis (57 Ed Dept Rep, Decision No. 17,303) which dismissed petitioner’s challenge to the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) denying his son transportation to a nonpublic school.  The application must be denied.

In the underlying appeal, I found petitioner’s reply documents to be untimely and therefore, I did not consider them (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303). Petitioner argues that his reply documents in the underlying appeal were timely because respondent’s answer was served by first-class mail, and not by United Parcel Service (“UPS”) overnight delivery, and therefore, should have been considered. Respondent argues that the application should be dismissed because, even if the reply were to be considered, it would not have changed the outcome of the appeal and because petitioner has not set forth a valid basis for reopening the prior appeal. 

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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).

Together with the application to reopen, petitioner submits a copy of a first-class mail envelope addressed to him, from respondent’s counsel, and avers that the envelope – not a UPS envelope - contained respondent’s answer.  In its affirmation in opposition to petitioner’s application to reopen, respondent admits that, due to an “inadvertent office error,” the affidavit of service of the answer on petitioner indicated that it was delivered to petitioner via UPS overnight delivery but that the answer was served on petitioner via first-class mail.  Respondent withdraws its previous objection to petitioner’s reply as untimely and argues that petitioner’s reply contains “restated arguments already made in the [p]etition and original [a]ppeal” that, even if considered, would not have changed the outcome of the appeal. 

Respondent argues that petitioner has “not offered additional facts or arguments that could warrant reopening the [a]ppeal” and requests that the application be denied.  Petitioner does not submit a reply or other evidence to refute respondent’s contentions in this regard.

Petitioner has failed to meet the standard required to reopen a prior appeal as he has failed to demonstrate that the original decision was rendered under a misapprehension of fact or that there is new or material evidence that was not available at the time the decision was made.  The application is devoid of any allegation(s) that the original decision was rendered under a misapprehension of fact or that there is new or material evidence that was not available at the time the decision was made.  Petitioner’s sole contention is that the reply was timely and should have been considered.  However, even if the reply were considered as timely, it would not have changed the outcome of the original appeal.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, even if the reply were considered, I would not have considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  In this case, as respondent notes, most of petitioner’s reply merely restated allegations that were made in the petition in the original appeal.  The only portions of petitioner’s reply that responded to new material or affirmative defenses set forth in the answer related to petitioner’s disagreement with respondent’s reliance on a prior Commissioner’s decision (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028) and petitioner’s response to respondent’s request for attorneys’ fees.  However, my decision dismissing petitioner’s claims in the original appeal appropriately cited to Appeal of Flemming as one of several relevant authorities supporting such decision and petitioner makes no claim in this regard in his application to reopen.  Moreover, respondent did not prevail on its claim for attorneys’ fees in the underlying appeal.  Therefore, on this record, petitioner has not met his burden of establishing that the original decision was rendered under a misapprehension of fact or that there is new or material evidence that was not available at the time the decision was made (see Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314).

In light of this disposition, I need not address the parties’ remaining contentions.     

THE APPLICATION TO REOPEN IS DENIED.

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