§ 275.1 Parties.

The party commencing an appeal shall be known as petitioner or appellant and any adverse party, as respondent. After an appeal is commenced in accordance with these rules, no party shall be joined or be permitted to intervene, except by leave or direction of the Commissioner of Education.

§ 275.2 Class appeals.

(a) When allowed, an appeal may be maintained by one or more individuals on their own behalf and as representatives of a class of named or unnamed individuals only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class. Minor variations of fact shall not preclude the maintenance of a class appeal when such variations are irrelevant for purposes of the decision.

(b) Protective orders. The commissioner may at any stage of the appeal issue such orders as may be necessary to fairly and adequately protect the interests of the persons on whose behalf the appeal is brought.

§ 275.3 Pleadings.

(a) Types of pleadings. There shall be a petition, an answer, and, if new material is alleged in the answer, a reply thereto. No other pleading will be permitted, except as provided in subdivision (b) of this section.

(b) Additional pleadings. The commissioner may permit or require the service and filing of additional pleadings upon such terms and conditions as he may specify. An additional pleading may be served upon all other parties and filed with the office of counsel only with the prior permission of the commissioner, granted upon application of the party desiring to submit such pleading. The proposed pleading shall accompany such application, and both the application and the proposed pleading shall be served upon all other parties in accordance with subdivision (b) of section 275.8 of this Part.

(c) Form of pleadings. All pleadings and affidavits shall be submitted in typewritten form, double spaced, on white paper 8^1/2 by 11 inches in size and shall set forth the allegations of the parties in numbered paragraphs. Such pleadings shall be addressed "To the Commissioner of Education", and shall be filed in accordance with the provisions of section 275.9 of this Part.

§ 275.4 Names of parties or attorneys to be endorsed on all papers.

All pleadings and papers submitted to the commissioner in connection with an appeal must be endorsed with the name, post office address and telephone number of the party submitting the same, or, if a party is represented by counsel, with the name, post office address and telephone number of his attorney.

§ 275.5 Verification.

All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners, except that when the appeal is taken by the trustee or the board of trustees or board of education of a school district, it shall be verified by any person who is familiar with the facts underlying the appeal, pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board. An answer shall be verified by the oath of the respondent submitting such answer, except that when the respondent is a domestic corporation, the verification shall be made by an officer thereof. If the appeal is brought from the action of the trustee or board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal. If two or more respondents are united in interest, verification of the answer shall be made by at least one of them who is familiar with the facts. A reply shall be verified in the manner set forth for the verification of an answer.

§ 275.6 Affidavit of verification.

The affidavit of verification shall be in the following form:

COUNTY OF__________________ss.:

_______________________________ being duly sworn, deposes and says that he is______________________________ in this proceeding; that he has read the annexed _________________ and knows the contents thereof; that the same is true to the knowledge of deponent except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true.

Subscribed and sworn to before

me this __________ day of____________

19_________

______________________

§ 275.7 Oaths

All oaths required by these rules may be taken before any person authorized to administer oaths within the State of New York. The statement of an attorney admitted to practice in the courts of this State and appearing in an appeal as attorney of record or of counsel to the attorney of record, when subscribed and affirmed by him to be true under the penalty of perjury, may be served or filed in the appeal in lieu of and with the same force and effect as an affidavit

§ 275.8 Service of pleadings and supporting papers.

(a) Petition. A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner. If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service. If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services. Pleadings may be served by any person not a party to the appeal over the age of 18 years.

(b) Subsequent pleadings and papers. All subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon his attorney. When the same attorney appears for two or more parties, only one copy need be served upon him. Service of all pleadings subsequent to the petition shall be made by mail 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 within the state. If the last day for service of any pleading or paper subsequent to the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

(c) Award of bid. If an appeal involves the award of a contract pursuant to article 5-A of the General Municipal Law or pursuant to subdivision 14 of section 305 of the Education Law, and a party other than the appellant has been designated as the successful bidder or has been awarded a contract, such successful bidder must be joined as a respondent and must be served with a copy of the petition. In such case, the respondent board of education or board of trustees shall forward to the commissioner, within 20 days after service of the petition on appeal, a copy of the notice to bidders together with proof of publication thereof, a copy of the specifications and copies of all bids or proposals.

(d) Disputed elections. If an appeal involves the validity of a school district meeting or election, or the eligibility of a district officer, a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent. In such case, except where the eligibility of a district officer is involved, any qualified voter may serve and file an answer in such appeal whether or not the trustee or board of trustees or board of education serves and files an answer therein.

§ 275.9 Filing and fee.

(a) Within five days after the service of any pleading or paper, the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234. The affidavit of service shall be in the form set forth below and shall indicate the name and official character of the person upon whom service was made.

(b) Filing fee. A fee of $20, payable to the State Education Department, shall accompany the filing of a petition in an appeal to the Commissioner of Education, except that there shall be no fee for the filing of a petition pursuant to Education Law, section 4404(2). No fee shall be required in appeals brought before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of an impartial hearing officer but involve matters related to the provision of a free appropriate public education to a pupil with a handicapping condition. The requirement of a filing fee may be waived, at the discretion of the commissioner, upon application by a petitioner in the form of an affidavit by petitioner or petitioner’s attorney. Such affidavit shall set forth the amount and sources of all income of petitioner, whether taxable or not shall list all property held by petitioner, including real estate, personal property and bank accounts, together with the total value of each category; and shall state that the petitioner is unable to pay the fee necessary to initiate the appeal.

§ 275.10 Contents of petition.

The petition shall contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner’s claim and of the specific act or acts complained of.

§ 275.11 Notice with petition.

(a) Each petition must contain the following notice:

Notice:

You are hereby required to appear in this appeal and to answer the allegations contained in the petition. Your answer must conform with the provisions of the regulations of the Commissioner of Education relating to appeals before the Commissioner of Education, copies of which are available from the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.

If an answer is not served and filed in accordance with the provisions of such rules, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the commissioner.

Please take notice that such rules require that an answer to the petition must be served upon the petitioner, or if he be represented by counsel, upon his counsel, within 20 days after the service of the appeal, and that a copy of such answer must, within five days after such service, be filed with the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234.

(b) The provisions of this section shall not apply to appeals brought before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of an impartial hearing officer but involve matters related to the provision of a free appropriate public education to a pupil with a handicapping condition. The petition in such an appeal shall contain the notice set forth in section 279.3 of this Title, except that the notice shall indicate that a decision will be rendered by the commissioner.

§ 275.12 Contents of answer.

The answer of each respondent shall contain a clear and concise statement of his defenses to each claim and shall either admit or deny the allegations of the petition. In addition, each respondent may set forth affirmative defenses or defenses by way of avoidance. If more than one respondent has been named and served and if common questions of law or fact are involved, the respondents, if otherwise united in interest, may submit a joint answer to the petition.

§ 275.13 Service of answer and supporting papers.

(a) Each respondent upon whom a copy of the petition has been served shall, within 20 days from the time of such service, answer the same, either by concurring in a statement of facts with the petitioner or by service in the manner set forth in section 275.8(b) of this Part of an answer, together with all of respondent’s affidavits, exhibits and other supporting papers, except a memorandum of law. The date upon which personal service was made upon respondent shall be excluded in the computation of the 20-day period.

(b) The provisions of subdivision (a) of this section shall not apply to appeals before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of a impartial hearing but involve matters related to the provision of free appropriate public education to a pupil with a handicapping condition. In such appeals service of the answer and supporting papers shall be made in accordance with the provisions of section 279.5 of this Title.

§ 275.14 Reply.

(a) The petitioner shall reply to each affirmative defense contained in an answer. The reply, together with any affidavits which shall be limited to support of such reply, shall be served within 10 days after service of the answer to which it responds in the manner set forth in section 275.8(b) of this Part. If the answer has been served by mail upon petitioner or his counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period.

(b) The provisions of subdivision (a) of this section shall not apply to appeals before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of a impartial hearing officer but involve matters related to the provision of free appropriate public education to a pupil with a handicapping condition. In such appeals, no pleading other than a petition and an answer will be accepted or considered by the commissioner, except a reply by the petitioner to any procedural defenses interposed by a respondent. Such reply shall be served and filed within three days after service of the answer. If the answer has been served by mail upon petitioner or his counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the three-day period.

§ 275.15 Representation by attorney.

A party other than a school district or a corporation may prosecute or defend an appeal before the commissioner in person, or by an attorney. A school district or a corporate party may appear only by an attorney. An individual permitted to appear in administrative proceedings under a practice order issued pursuant to sections 478 and 484 of the Judiciary Law by a department of the Appellate Division of the Supreme Court of the State of New York may represent a party under the supervision of the attorney of record.

§ 275.16 Limitation of time for initiation of appeal.

An appeal to the commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition.

§ 275.17 Amicus curiae.

The commissioner may, in his sole discretion and upon written application submitted at or before oral argument, permit interested persons or organizations to submit memoranda of law amicus curiae in connection with a pending appeal. Those permitted to submit memoranda amicus curiae shall not be considered parties to the appeal before the commissioner and shall not be entitled to receive copies of pleadings and papers pertaining thereto or to participate in oral argument.