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 Pelham Union Free School District
Mayerson & Associates, attorney for petitioner, Gary S. Mayerson, Esq. & Randi M. Rothberg, Esq., of counsel
Keane & Beane, P.C., attorney for respondent, Stephanie M. Roebuck, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Windward School for the 2004-05 and 2005-06 school years and denied their request to be reimbursed for their son's transportation costs to and from the Windward School for the 2004-05 and 2005-06 school years. The petition must be dismissed without prejudice, with leave to amend.
Petitioners commenced this appeal on August 25, 2006 by filing with the Office of State Review a Verified Petition1 and memorandum of law. The petition alleges that the impartial hearing officer "erred as a matter of law" and requests that her July 7, 2006 decision be reversed. Respondent filed a Verified Answer and memorandum of law on August 25, 2006, denying petitioners' allegations and raising an affirmative defense that petitioners failed to identify in their petition the findings, conclusions and orders of the impartial hearing officer to which exceptions are taken in violation of section 8 NYCRR 279.4(a) of the Regulations of the Commissioner of Education. After reviewing the petition, I agree with respondent for the reasons stated herein that petitioners failed to comply with 8 NYCRR 279.4(a).
Section 279.4(a) of the Commissioner's regulations provides, in pertinent part: "[t]he petition for review shall clearly indicate the reasons for challenging the impartial hearing officer's decision, identifying the findings, conclusions and orders to which exceptions are taken, and shall briefly indicate what relief should be granted by the State Review Officer to the petitioner." In this appeal, petitioners are represented by counsel. The statements in the petition are so unduly vague and ambiguous as to preclude respondent from effectively formulating a responsive answer. Other than asserting in general terms that they challenge the impartial hearing officer's decision and request reversal, petitioners provide no particulars as to the reasons why they challenge the impartial hearing officer's decision. For example, one of petitioners' five general statements asserts that the impartial hearing officer "ignored the documentary evidence and admissions showing that petitioners amply met the recognized test for reimbursement" (Pet. ¶ 6[a]). The petition for review is required to "clearly indicate the reasons for challenging the impartial hearing officer's decision" (8 NYCRR 279.4[a]). The petition in this case fails to meet this requirement.
Moreover, the reference in the petition to "the authorities set forth in the accompanying memorandum of law" (Pet. ¶ 6), does not cure petitioners' failure to comply with 8 NYCRR 279.4(a). A memorandum of law is not a substitute for a pleading (see 8 NYCRR 279.4, 279.6; Application of the Bd. of Educ., Appeal No. 05-031). State regulations direct that "[n]o pleading other than the petition or answer will be accepted or considered by a State Review Officer except a reply by the petitioner to the answer" (8 NYCRR 279.6). To the extent petitioners submitted a memorandum of law along with their petition for review; the memorandum is not a substitute for a properly drafted petition for review.
I will therefore exercise my discretion under 8 NYCRR 279.8(a), and dismiss the petition without prejudice, granting petitioners leave to amend the petition within 14 calendar days of the date of this decision to comply with 8 NYCRR 279.4(a).
THE PETITION IS DISMISSED.
IT IS ORDERED that the petition is dismissed with leave for petitioners to serve an amended verified petition for review and notice with petition on respondent and file such amended pleading 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.
1 Respondent raised in its answer an argument that the petition should be dismissed because it was not verified as required by 8 NYCRR 279.7. However, I find that the petition which was filed with the Office of State Review in this appeal is verified. Although the copy of the petition served upon respondent should also have been verified, petitioners' failure to do so does not afford a sufficient basis to dismiss the appeal on that ground (Application of a Child with a Disability, Appeal No. 94-14; Application of a Child with a Disability, Appeal No. 93-33; Application of a Child Suspected of Having a Disability, Appeal No. 93-7).