* Subsequent History: Matter of Lujan v Elia; Supreme Court, Albany County (McGrath, J.); Judgment dismissed petition to review; January 16, 2019. *

Application to Reopen the Appeal of R.L. from action of the Chancellor of the New York City Department of Education, Carmen Fariña, regarding denial of access to school property.

Decision No. 17,427

(July 5, 2018)

Morningside Heights Legal Services, Inc., attorneys for petitioner, Philip M. Genty, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorneys for respondent, Agnetha E. Jacob, Esq., of counsel

ELIA, Commissioner.--Petitioner seeks to reopen Appeal of R.L. (57 Ed Dept Rep, Decision No. 17,359) which dismissed petitioner’s appeal from the determination of Carmen Fariña, Chancellor of the New York City Department of Education[1] (“NYCDOE”), prohibiting him from accessing P.S. 151 Yorkville Community School property.  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 (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).

First, petitioner contends that the original decision mischaracterized his allegations and, thus, misapprehended the facts of the appeal.  Specifically, petitioner argues that, in the original appeal, he challenged respondent’s alleged district-wide policy banning Level III sex offenders from school grounds and did not limit his challenge to the policy’s application to a particular school.  Petitioner’s allegations, however, are not facts within the meaning of 8 NYCRR §276.8 (see e.g. Matter of Application to Reopen Appeal of Irving, et al., 14 Ed Dept Rep 42, Decision No. 8,857 [appeal reopened where, contrary to finding in original appeal, the petition contained the notice required by Commissioner’s regulation §277.1]).  Therefore, petitioner’s request that I reinterpret his allegations amounts to a request to re-argue the merits of the appeal, which is not a valid ground for reopening (Application to Reopen the Appeals of J.A., 49 Ed Dept Rep 287, Decision No. 16,028).

Next, petitioner argues that new and material evidence unavailable at the time of the underlying decision – namely, a letter dated February 26, 2018 from the principal of respondent’s M.S. 107 Wagner Middle School (the “middle school”) – supports reopening of the underlying appeal.  In this letter, the middle school principal indicates that petitioner may access the middle school under certain specified conditions.  Specifically, with advance notice and while accompanied by a school safety agent, petitioner may: (1) meet with the principal or any other staff member; (2) enter the building or come within 1,000 feet of school grounds; (3) pick up his child in case of emergency; and (4) attend a school event in which his child is a participant.  The middle school principal further indicated in this letter that petitioner could not pick up or drop off the student as a matter of course.

This letter, if anything, reinforces the holding in the underlying appeal that the matter was moot because, following the student’s graduation from P.S. 151 Yorkville Community School, the middle school principal made a new determination as to petitioner’s ability to access school property.  While petitioner disagrees with the middle school principal’s conclusion, his argument that her determination “demonstrates that [r]espondent’s determination ... is not limited to any single school” ignores the material differences between the two determinations.  Thus, I do not find that the middle school principal’s determination constitutes new and material evidence justifying reopening of the original appeal.

Finally, petitioner expresses concern that, if he challenged the middle school principal’s determination in an appeal pursuant to Education Law §310, he may not receive a determination until the student graduates from middle school, thus rendering any such appeal moot.  I do not find that these concerns provide a basis for reopening an appeal which otherwise does not meet the requirements of 8 NYCRR §276.8.  In any event, while petitioner claims an interest in an expeditious decision, this is belied by the fact that petitioner did not seek a stay in the underlying appeal, there is no evidence that petitioner has sought to appeal the February 26, 2018 determination to the Chancellor, and he has not commenced an appeal of the middle school principal’s February 26, 2018 determination pursuant to Education Law §310.  Should petitioner seek to challenge the middle school principal’s determination in an appeal pursuant to Education Law §310, this application to reopen is not the appropriate vehicle by which to do so.

THE APPLICATION IS DENIED.

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