Sec. 276.8. Reopening of a prior decision

(a) Any party to an appeal may, within 30 days after the date of a decision thereon, apply by petition to the commissioner for a reopening of said decision. Applications for reopening are addressed solely to the discretion of the commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made. No oral argument shall be had in connection with an application for reopening unless the commissioner directs that such argument be had.

(b) An application to reopen a decision shall set forth concisely the basis upon which the applicant believes such decision should be reopened. Service of the application shall be made in the manner set forth in section 275.8(b) of this Title. Affidavits in opposition to an application to reopen may be submitted by any party opposing such application. Service of such affidavits in opposition shall be made in accordance with the provisions of section 275.8(b) of this Title, and within the time by which an answer must be served pursuant to section 275.13 of this Title.

(c) The commissioner may, on his/her own motion, reopen a prior decision in the absence of an application therefor where in the commissioner's judgment the interests of justice will be served thereby.

(d) The provisions of this section shall not apply to appeals brought pursuant to section 4404 of the Education Law. The determination of a State review officer of the State Education Department shall be final, provided that either party may seek judicial review by means of a proceeding pursuant to article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.

(e) Notwithstanding the provisions of subdivision (b) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, an application to reopen a decision may be served in the manner set forth in either section 275.8(b) or (e) of this Title. Service of affidavits in opposition to an application to reopen shall be served in accordance with the provisions of either section 275.8(b) or (e) or section 275.13(b) of this Title.

(f) The provisions of this section shall not apply to a charter school location/co-location appeal pursuant to section 276.11 of this Part.