8 NYCRR 279.4(a) provides that a party electing to appeal the hearing officer decision must file the appeal within 40 days of the date on which the hearing officer's decision was issued.*
In a proceeding pursuant to CPLR Article 4 [Special Proceedings] and Education Law §4404(3),** Plaintiff conceded that his appeal was untimely but his lateness should be excused because an OSR employee gave him "erroneous advice" resulting in his serving his request for review 43 days after the hearing officer's decision was issued.
Supreme Court denied the Plaintiff's petition and dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling to the Appellate Division, contending that as erroneous advice from an employee of the OSR was the cause of his filing an untimely appeal, his late filing of his appeal should be excuse under color of the Doctrine of Estoppel.
Citing Bender v New York City Health and Hospitals Corp., 38 NY2d 662, the Appellate Division explained that the Doctrine of Estoppel "is only applicable to a government agency when the agency acts or comports itself wrongfully or negligently, inducing reliance by a party who changes his or her position to his or her detriment or prejudice."
The court opined that the alleged erroneous statement made by the OSR employee does not constitute misconduct sufficient to warrant applying the doctrine of estoppel as only "a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon, will justify the imposition of estoppel" on a government entity.
The Appellate Division then affirmed Supreme Court's ruling, with costs.
* 8NYCRR 279.4 provides that "[a]party seeking review (petitioner) shall personally serve a notice of request for review and a request for review upon the opposing party (respondent), within 40 days after the date of the decision of the impartial hearing officer sought to be reviewed."
** Education Law §4404(3) provides for the review of the determination of a state review officer in matters concerning children with disabilities.
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06530.htm