ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

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


CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com