04-001

            Petitioners appeal from the decision of an impartial hearing officer which found that respondent offered their son a free appropriate public education (FAPE) for the 2002-03 school year.  The petition must be dismissed without prejudice, with leave to amend.

            Respondent asserts that petitioners have failed to comply with the Regulations of the Commissioner of Education in the form of their pleadings, and requests that I reject the petition (Answer ¶¶ 10, 12, 14).  The Regulations of the Commissioner of Education pertaining to the practice on review of impartial hearings for students with disabilities were amended and became effective on January 1, 2004 (see 8 NYCRR Part 279).  The petition for review is dated and was served upon respondent on January 2, 2004.  The regulations, as amended, contain a new regulation setting forth the proper form of pleadings and memoranda of law submitted to the State Review Officer (8 NYCRR 279.8).  The new regulation includes a provision that the petition for review shall not exceed 20 pages in length (8 NYCRR 279.8[a][5]), and specifically states that documents that fail to comply with these requirements may be rejected at the sole discretion of the State Review Officer (8 NYCRR 279.8[a]).  In the instant case, the petition for review exceeds allowable page limitations, and I note that the notice with petition is also in improper form (see8 NYCRR 279.3).  I agree with respondent that petitioners have failed to comply with the Part 279 regulations as amended effective January 1, 2004.  I will therefore exercise my discretion under 8 NYCRR 279.8(a) and grant respondent's request that the petition be rejected.  Nevertheless, in light of the fact that petitioners served their petition the day after the effective date of theamended regulations, and in accordance with the precept that leave to amend pleadings is freely given when justice so requires absent prejudice or surprise to the opposing party (see; Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 [2d Cir. 2002]; Crivaro v. Crivaro, 295 AD2d 304, 306 [2d Dept. 2002]; Fed. R. Civ. P. 15[a]; N.Y. § CPLR 3025[b]), I will dismiss the petition without prejudice, granting petitioners leave to amend the petition within 14 calendar days of the date of this decision in a form that complies with the amended Regulations of the Commissioner of Education.  Although in this instance I am granting leave and time to amend the pleadings, I am doing so because of the newness of the amended regulations and because petitioners' pleadings were in conformance with the previous practice regulations.  In the future, parties who file pleadings that are not in conformity with the amended Part 279 regulations may not be granted additional time to reserve and refile.

THE PETITION IS DISMISSED WITH LEAVE TO AMEND WITHIN 14 DAYS OF THE DATE OF THIS DECISION.

IT IS ORDERED that the petition is dismissed unless the petitioners shall serve an amended petition for review and notice with petition on respondent and file such amended pleadings with the Office of State Review within 14 days of the date of this decision.  The respondent shall have ten days thereafter to file and serve an amended answer.