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May 07, 2020

Requirements to be met when seeking to reopen a prior decision of the Commissioner of Education

The Commissioner of Education dismissed Petitioner's appeal as untimely and outside the jurisdiction of the Commissioner.* Petitioner subsequently asked the Commissioner to reopen her appeal.

Observing that 8 NYCRR 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision, the Commissioner noted that applications to reopen a prior decision are:

1. Granted solely as a matter of discretion exercised by the Commissioner;

2. 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; 

3. A reopening may not be used to augment previously undeveloped factual assertions and arguments, advance new legal arguments, or reargue issues presented in a prior appeal;

4. An application to reopen must be made within 30 days of the date of the underlying decision; and

5. An application must be dismissed for improper service. 

The Commissioner explained that service of an application to reopen “shall be made in the manner set forth in section 275.8(b)” of the Commissioner’s Regulations, which provide, in relevant part, that "service ... shall be made by United States mail, by private express delivery service or by personal service; service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service." 

Although Petitioner' submitted an affidavit indicating that she had "mailed the application to her own address," Respondent's affidavit stated that it did not receive a copy of the application and Petitioner failed to present any evidence that a copy of the application to reopen had, in fact, been served on the Respondent. 

Accordingly, the Commissioner dismissed Petitioner’s application to reopen the matter.

* See Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,781.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume59/d17831


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