The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer


No. 05-100

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Yorktown Central School District


Shaw & Perelson, LLP, attorney for respondent, Marc E. Sharff, Esq., of counsel


            Petitioners appeal from the decision of an impartial hearing officer which dismissed their complaint without prejudice and ultimately dismissed their complaint with prejudice, after petitioners failed to file a new hearing request by a set date.  The appeal must be dismissed.

            Initially, a procedural matter must be addressed.  Petitioners have submitted a reply to respondent's answer. Pursuant to the Regulations of the Commissioner of Education, a reply is limited to any procedural defenses interposed by respondent or to documentary evidence included with the answer (8 NYCRR 279.6).   A reply may not be used to generally respond to each of the allegations made in the answer, as petitioners have attempted to do (Application of the Bd. of Educ., Appeal No. 05-023; Application of a Child with a Disability, Appeal No. 04-002).  Accordingly, petitioners' reply was considered to the extent it responded to respondent's procedural defense  and responded to the additional documentary evidence served with the answer.1

            On November 22, 2004, petitioners filed a due process hearing request (Pet. 14).  After multiple adjournments, the hearing convened on July 1, 2005 (Tr. p. 3).  Petitioners were unable to be present on July 1, 2005 due to a recent accident, and had requested an adjournment of the hearing but were denied by the impartial hearing officer (Tr. pp. 5-7; Parent Exs. 1, 2; Pet. 27).  Petitioners' attorney was present at the hearing on July 1, 2005 and had been granted authority by petitioners in advance of the hearing to act on their behalf in their absence (Tr. pp. 6-7).  He outlined his authority as allowing him to "enter[] into an agreement that would either adjourn this matter or have it dismissed without prejudice. . ." (Tr. p. 7).  Petitioners concur that their attorney was granted this authority (Pet. 29).  An underlying settlement of the merits was discussed off the record on July 1, 2005 but was not detailed on the record (Tr. pp. 3-4). 

            On July 1, 2005 the impartial hearing officer set forth on the record:  "Parents have 30 days to accept the settlement agreement.  This case at this point is being dismissed without prejudice to renew.  If the case is not renewed within 45 days 45 days from today the case will be marked as dismissed with prejudice"  (Tr. p. 3) (emphasis added).  Petitioners' attorney indicated consent to this arrangement (Tr. pp. 3-4), which granted petitioners time to consider a proposed settlement of the underlying merits of the case, the details of which are not contained within the record (id.).  The impartial hearing officer prepared a decision, captioned "Settlement Agreement" and dated July 3, 2005, outlining the above terms as follows:

            The parties through there (sic) attorneys agree as follows:

  1. The settlement offered by the school district to [the student's] family will be in effect until August 1, 2005.

  2. This matter is hereby dismissed without prejudice.

  3. If the settlement offer is not accepted by [the student's] family on or before August 1, 2005 or a new due process hearing is not requested by August 16, 2005, then this matter is, on August 17, 2005 hereby dismissed with prejudice to renew.

(Pet. Ex. 3).

                        Petitioners did not accept the settlement offer addressing the merits of the case.  As of August 2, 2005, petitioners "were without legal counsel" (Pet. 36).  Petitioners assert that they did not learn that their case had been dismissed until August 30, 2005 (Pet. 21).  However, they also allege that on August 10, 2005, they contacted the impartial hearing officer for clarification of the decision (Pet. 36; Pet. Ex. 3).  Petitioners report that the impartial hearing officer left them a voice mail message, reading the decision and stating that they needed to refile for a due process hearing or appeal his decision (Pet. 36). 

                        The impartial hearing officer's decision dated July 3, 2005 did not set forth deadlines for filing an appeal (Pet. Ex. 3).  Petitioners state their belief that the time for their appeal to the State Review Officer began on August 17, 2005 (Pet. 35).  Respondent does not argue that the appeal was untimely commenced.

                        Petitioners argue that they did not grant authority for their due process hearing request to be dismissed with prejudice after 45 days (Pet. 32).  They seek to overturn the decision and to have the matters named within their demand for an impartial hearing dismissed without prejudice (Pet. 33).  As an affirmative defense in its answer, respondent argues that petitioners failed to timely request a new impartial hearing after refusing the underlying settlement of the merits, and that, therefore, their appeal should be dismissed.  Petitioners submitted a reply denying specific portions of respondent's procedural defense and objecting to documents annexed to respondent's answer, as set forth above.

Stipulations are favored by the courts as a means of settling disputes, and they may not lightly be set aside (Application of a Child with a Disability, Appeal No. 03-044; Application of a Child with a Disability, Appeal No. 03-071). That is equally true with respect to a stipulation in an administrative proceeding such as this (Application of a Child with a Disability, Appeal No. 03-044; Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Disability, Appeal No. 97-46; see also Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984]).  It has been noted that an appeal to a State Review Officer may not be used as a way to re-litigate a matter that the parties have previously resolved or to consider in the first instance additional claims that may arise as a settlement agreement is implemented (Application of a Child with a Disability, Appeal No. 03-044; Application of a Child with a Disability, Appeal No. 03-071). Although a stipulation may be vacated for cause including fraud, collusion, mistake, and accident, in this case, it is clear that no cause exists (Application of a Child with a Disability, Appeal No. 97-46; see also Matter of Frutiger, 29 N.Y.2d 143, 150 [1971]).

            Petitioners acknowledge being in receipt of the decision by August 10, 2005.  The settlement entered on the record was validly entered by counsel for the parties and the decision of the impartial hearing officer accurately and clearly sets forth its terms and applicable deadlines.  Further, by petitioners' own admission, they were aware, prior to the deadline passing, that they could file an impartial hearing request to reinstate the matter.  Petitioners fail to set forth any reason why they were unable to file an impartial hearing request prior to the deadline.  Petitioners had the ability to avoid the dismissal of which they now complain, but failed to act.  Under all the circumstances present herein, there is no basis for vacating the impartial hearing officer's decision.

            I have considered petitioners' remaining contentions and I find them to be without merit.



Albany, New York


October 21, 2005



1 Petitioners' reply objects to respondent's Exhibit "C", consisting of e-mail correspondence between counsel, annexed to the answer.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-068; Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068).  Exhibit C could not have been made available to the impartial hearing officer prior to his decision, but it is not necessary for my review and, therefore, has not been considered.