Appeal of KRISTINA YOUNG from action of the Orange-Ulster BOCES regarding a contract issue.

Decision No. 17,523

(October 16, 2018)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Laura Wong-Pan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the failure of the Board of Cooperative Educational Services of Orange-Ulster County (“respondent”) to provide her with the number of instructional hours necessary to complete the Health Information Technician Course (“HITC” or “the course”) offered by respondent; obtain a certificate of completion; and be prepared to sit for the exam required to become a certified professional coder-apprentice (“CPC-A”), which petitioner asserts is necessary to obtain an entry level job as a Health Information Technician.  The appeal must be dismissed.

Petitioner was enrolled in and attended the HITC from November 28, 2016 through May 18, 2017, excepting one day on which her absence from class was excused.  The cost of tuition for the HITC was $3,900.  Petitioner paid $1,900 in tuition, and the remaining $2,000 was paid through a grant from the Orange County Employment & Training Administration (“ETA”).

On May 9, 2017, eight days before the course was to be completed, the individual who taught the HITC resigned.  Respondent offered to provide a qualified instructor to teach the remaining 16 hours of the course, which focused on Electronic Health Records Management, as follows: from 5:00 p.m. – 9:00 p.m. on Monday, June 12; Wednesday, June 14; Thursday, June 15; and Monday, June 19.  By email dated May 25, 2017, petitioner stated that respondent’s offer did not “work for [her]” because “further exam preparation time ... doesn’t give me what the ... course promised: training in electronic health records” and because she had other commitments and could not attend on the dates offered by respondent.  This appeal ensued.

Petitioner alleges that respondent failed to provide the 300 hours of instruction promised in its course brochure.  Petitioner alleges that, for each class, one hour of instruction was missed because of the instructor’s habit of starting the classes late, extending breaks, and ending the classes early.  Petitioner also claims that the instructor was not certified; that her knowledge of the HITC was faulty; and that she skipped many chapters in the textbook that were used for the HITC.  

Petitioner alleges that she made her concerns known to respondent’s management in March 2017, but no resolution was achieved.  Petitioner claims that she did not receive her certificate of completion and was not prepared to take the CPC-A exam, which would have qualified her to obtain an entry level job as a Health Information Technician because of insufficient instructional hours, insufficient exam preparation, and the instructor’s lack of knowledge on the subject.

As relief, petitioner requests that I award $34,325.69 in monetary damages comprised of the following costs:  tuition; all required educational materials; travel expenses; “AAPC membership” and the CPC-A exam fee; tutor fees; clothing expenses; and past and future lost wages.

I must first address the procedural issues.  Petitioner has submitted a document entitled “Petitioner’s Response to Respondent’s Memorandum of Law in Support Answer [sic]” (“Petitioner’s Response”), which is duly verified and appears to be both a reply to the affirmative defenses raised in respondent’s answer and a response to the allegations in respondent’s memorandum of law.  To the extent Petitioner’s Response is intended as a reply to respondent’s answer, I note that 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, while I have reviewed those portions of Petitioner’s Response that reply to respondent’s answer and affirmative defenses, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Moreover, I have not considered those portions of Petitioner’s Response that respond to arguments made in respondent’s memorandum of law, because petitioner did not seek or obtain permission of the Commissioner to serve a reply memorandum of law, as required by §276.4(a) of the Commissioner’s regulations.

In Petitioner’s Response and in a letter to my Office of Counsel dated June 29, 2017, petitioner argues that respondent’s answer should be dismissed as untimely.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

This appeal was commenced by service of the petition on June 2, 2017 and respondent’s answer was therefore required to be served by June 22, 2017.  The affidavit of service filed with my Office of Counsel attests that the answer was served upon petitioner by regular mail on June 21, 2017.

However, in the portion of Petitioner’s Response that constitutes a reply, petitioner alleges, among other things, that respondent’s affidavit of service was false and that the answer was actually served by respondent on June 23, 2017, after the 20-day period for serving the answer had expired.  Accordingly, petitioner argues that the late answer should be rejected.  Enclosed as an exhibit with Petitioner’s Response is an envelope addressed to her from respondent’s attorney postmarked June 23, 2017.

On June 30, 2017, respondent sought permission pursuant to §276.5 of the Commissioner’s regulations to file a Supplemental Affirmation in response to petitioner’s allegation that the answer is untimely.  I have accepted such Supplemental Affirmation for consideration herein.

In the Supplemental Affirmation, respondent’s attorney asserts that the law firm attempted to serve the answer by regular mail on June 21, 2017, but failed to include the proper postage, and the envelope was returned to them.  She admits that the answer was then served upon petitioner by regular mail in a second envelope on June 23, 2017, which supports petitioner’s allegations that the answer was late.  She explains that the law firm’s postage scale rendered the incorrect amount of postage required and argues that the initial service was made in good faith, and that the delay was inadvertent and did not prejudice petitioner.

However, while I have discretion under 8 NYCRR §275.13(b) to excuse the delay in serving the answer for good cause shown, I decline to do so on this record.  Section 275.13(b) expressly requires that the reasons for the failure to timely serve the answer be set forth in the answer, which was not done.  Moreover, an affidavit of service attesting that service was made by regular mail on June 23, 2017 was not included with the Supplemental Affirmation and the only affidavit of service on file with my Office of Counsel indicates that service occurred on June 21, 2017, which is not true.  The requirement in §275.8(b) of the Commissioner’s regulations that service is complete upon deposit in a postpaid properly addressed wrapper in a post office or other official depository means that envelope must have the full amount of postage needed in order for service to be complete.  Under the circumstances presented here, I decline to excuse the delay.  Accordingly, I have not accepted respondent’s answer, and petitioner’s factual statements are deemed to be true.

In any case, the appeal must be dismissed for lack of jurisdiction.  The crux of petitioner’s claim is that respondent breached its contract with her and the sole relief sought in the petition is damages, costs and disbursements for such alleged breach.  An appeal to the Commissioner is not the appropriate forum in which to seek review of this type of dispute.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).  The appropriate forum for such a proceeding is civil court (see Appeal of Cohen, 30 Ed Dept Rep 252, Decision No. 12,452).

By letter dated April 23, 2018, respondent’s attorney informed my Office of Counsel that, on May 5, 2017, petitioner filed a grievance with the Orange County ETA and, after a hearing, the hearing officer determined that the ETA was entitled to a refund of the $2,000 grant it had provided to partially pay petitioner’s tuition and recommended that petitioner be reimbursed for the $1,900 she paid in tuition.  In October 2017, petitioner raised the same claims as stated in her grievance in a breach of contract action in the Middletown City Court, seeking $5,000 in contract damages.  That case was dismissed to the extent she requested tuition reimbursement because the court found that petitioner had already received a refund from respondent of the $1,900 in tuition she had paid.  The court further ordered that a hearing be held on petitioner’s claims of consequential damages.  A hearing was held, and on March 16, 2018, the court entered judgment for petitioner in the amount of $2,097.78 in consequential damages and $20 in costs.

Given the above, to the extent that petitioner seeks a tuition refund in the amount of $1,900, this appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist, or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  The record indicates that petitioner has received a full tuition refund, which renders her claim moot.

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

THE APPEAL IS DISMISSED.

END OF FILE