O.W. and L.W., on behalf of minor child, A.W. v. Board of Education of the Township of North Bergen, Hudson County, 3/3/25 (#70-25)

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70-25
OAL Dkt. No. 15824-24
Agency Dkt. No. 270-10/23

New Jersey Commissioner of Education

Final Decision

O.W. and L.W., on behalf of minor child, A.W.,

Petitioners,

Board of Education of the Township of North
Bergen, Hudson County,

Respondent.

The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by the petitioner pursuant to N.J.A.C. 1:1-18.4, and the North Bergen Board
of Education’s (Board) reply thereto, have been reviewed and considered.

In this matter, petitioners challenge the July 20, 2023 harassment, intimidation, and
bullying (HIB) determination made by the Board. Petitioners, through their attorney, filed the
petition of appeal on October 10, 2023. That same day, the Office of Controversies and Disputes
(C&D), which processes petitions on behalf of the Commissioner, emailed petitioners’ attorney
to inform him that the petition was deficient because it failed to include a verification, as required
by N.J.A.C. 6A:3-1.4, and proof of service, as required by N.J.A.C. 6A:3-1.3(a). On October 26,
2023, petitioners, through their attorney, filed an amended petition. That same day, C&D
emailed petitioner’s attorney to inform him that the amended petition had been received, but

that it remained deficient because it still lacked a verification and proof of service.

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Petitioner’s attorney replied to C&D’s email on October 27, 2024, attaching a petition
with the required verification. However, the petition still did not include proof of service, and
C&D responded to petitioners’ attorney on the same day to ask that it be provided so that the
petition could be processed. When the proof of service was not provided, C&D sent a deficiency
notice to petitioners’ attorney by mail on November 15, 2023, indicating that if proof of service
was not provided by December 14, 2023, the matter would be deemed withdrawn and no further
action would be taken. Proof of service was not received, and the matter was closed.
On September 10, 2024, petitioners’ attorney emailed C&D to inquire about the status of
the matter, and he was advised that it had been closed. 	On October 11, 2024, petitioners,
through their attorney, filed a “Petition for Reinstatement/Open.”
Following the Board’s motion to dismiss, the Administrative Law Judge (ALJ) concluded
that the petition of appeal was untimely pursuant to N.J.A.C. 6A:3-1.3(i). The ALJ found that while
petitioners attempted to file the petition within 90 days, it was never deemed filed because it
was procedurally deficient. The ALJ noted that clear instructions were provided by C&D regarding
the nature of the deficiency, how it was to be cured, and the deadline for doing so. Petitioners
nonetheless failed to cure the deficiency, and the only excuse they provided was that it was
inadvertently not cured. Finally, the ALJ found that the circumstances did not warrant relaxation
of the filing deadline. Accordingly, the ALJ granted the Board’s motion to dismiss the petition.
In their exceptions, petitioners argue that New Jersey courts are averse to dismissing
cases on procedural grounds and prefer to decide cases on the merits, such that the ALJ should
have denied the Board’s motion to dismiss and reinstated the HIB complaint. Petitioners contend
that there would be no prejudice to the Board in allowing the matter to continue.

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In reply, the Board urges the Commissioner to adopt the Initial Decision in its entirety and
to dismiss the petition of appeal as untimely.
Upon review, the Commissioner concurs with the ALJ that the petition of appeal was
untimely. The Commissioner notes that 90 days from petitioners’ July 20, 2023 receipt of the
Board’s decision was October 18, 2023. 	Petitioners’ original submission on October 10, 2023
was deficient, and the petition was therefore not filed on that date. The petition did not include
the verification required by N.J.A.C. 6A:3-1.4, and same was not provided until October 27, 2023,
outside the 90-day deadline. 	Petitioners’ counsel provided no explanation for the delay in
providing the verification, despite C&D sending him an email stating that it was required more
than a week before the expiration of the deadline.
Furthermore, N.J.A.C. 6A:3-1.3 requires that a petitioner must file proof of service along
with the petition and supporting materials. In the absence of proof of service, a petition is not
filed. There is no dispute that petitioners failed to provide proof of service with their original
petition, or even with the amended petition or the amended petition with verification that were
subsequently filed. The petition was filed by petitioners’ counsel, who should have been well
aware of the regulatory requirements; proof of service is not a requirement unique to the
Department of Education or the administrative dispute resolution process. 	Moreover,
petitioners’ 	attorney 	offers 	no 	reasonable 	explanation 	for 	his 	failure 	to 	respond 	to
communications from C&D regarding the deficiency.
The Commissioner further agrees with the ALJ that the circumstances do not warrant
relaxation of the deadline. The purpose of the time limitation is, in part, to “serve as a measure
of repose” through which a board of education can be secure, after the 90 days have elapsed,

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that its decisions will not be challenged before the Commissioner. 	Kaprow v. Bd. of Educ. of
Berkeley Twp., 131 N.J. 572, 587 (1993). 	Furthermore, the deadline is intended to “stimulate
litigants to pursue a right of action within a reasonable time so that the opposing party may have
a fair opportunity to defend.” Ibid. For these reasons, the filing deadline is strictly construed and
consistently applied.
Accordingly, the Initial Decision is adopted as the final decision in this matter, and the
petition of appeal is hereby dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	March 3, 2025
Date of Mailing: 	March 5, 2025
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the
date of mailing of this decision.

New Jersey is an Equal Opportunity Employer.
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
DISMISSAL
OAL DKT. NO. EDU 15824-24
AGENCY DKT. NO. 270-10/23
O.W. AND L.W. O/B/O MINOR CHILD, A.W.,
Petitioner,
v.
TOWNSHIP OF NORTH BERGEN
BOARD OF EDUCATION, HUDON COUNTY,
Respondents.
_____________________________________
Lawrence A. Katz, Esq., for petitioners (The Lento Law Firm, attorneys)
Jason M. Ryglicky, Esq., for respondents (Ryglicky & Gillman, P.C., attorneys)
Record Closed: December 19, 2024 Decided: January 14, 2025
BEFORE BINDI MERCHANT, ALJ:
STATEMENT OF THE CASE
Petitioner filed a petition of appeal with the Department of Education on October
11, 2024, over 365 days late, to reinstate a defective appeal for a harassment,
Intimidation, or Bullying (HIB) determination. Is the petition time-barred? Yes. Under

OAL DKT. NO. EDU 15824-24
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N.J.A.C. 6A:3-1.3(i), a petitioner must file a petition no later than the ninetieth day from
the date of receipt of notice of a board’s final action.
PROCEDURAL HISTORY
On July 20, 2023, respondent provided petitioner written notice of its HIB
determination. On October 10, 2023, petitioner filed an appeal with the New Jersey
Department of Education, Office of Controversies and Disputes (OCD), but was advised
that the filing was deficient for failing to provide a verification or certification and proof of
service. On October 26, 2023, petitioner filed an amended petition with OCD. On
October 27, 2023, petitioner filed the amended petition with the verification, but did not
include the proof of service. On November 15, 2023, OCD again notified petitioner of the
deficiency and that a corrected filing was due by December 14, 2023.
On October 11, 2024, petitioner filed an appeal with OCD as a “Petition for
Reinstatement/Open.” On October 31, 2024, respondent filed a motion to dismiss instead
of an answer under N.J.A.C. 6A:3-1.5(g). On November 4, 2024, the bureau transmitted
this case to the Office of Administrative Law as a contested case under the Administrative
Procedure Act, N.J.S.A. 52:14B-1 to -15, and the act establishing the OAL, N.J.S.A.
52:14F-1 to -13.
On November 26, 2024, I held an initial prehearing conference and established a
briefing schedule for the motion to dismiss. On December 4, 2024, petitioner filed
opposition. On December 9, 2024, respondent filed a reply. Oral argument was heard
on December 19, 2024, and the record was closed.
FINDINGS OF FACT
Based on the documents submitted and oral arguments on the motion to dismiss,
I FIND the following as FACT for purposes of this motion:

OAL DKT. NO. EDU 15824-24
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1. On July 20, 2023, petitioner was notified that respondent affirmed the
School’s HIB determination and decision to punish petitioner on July 19,
2023.
2. On October 10, 2023, petitioner attempted to file a petition for appeal with
OCD.
3. On October 10, 2023, OCD advised that the filing was deficient for failing to
provide a verification or certification and proof of service.
4. On October 26, 2023, petitioner filed an amended petition with OCD.
5. On October 26, 2023, OCD stated that the amended petition could not be
processed until the deficiencies were rectified.
6. On October 27, 2023, petitioner filed the amended petition with the
verification but did not include the proof of service.
7. On October 27, 2023, OCD again reminded petitioner to provide a proof of
service to process the petition
8. On November 15, 2023, petitioner received a formal deficiency notice
advising that a proof of service was required and that documents were
required by December 14, 2023, or the matter would be deemed withdrawn
and no further action would be taken.
9. On September 10, 2024, petitioner requested an update on the status of the
petition and was advised that the appeal was closed and deemed withdrawn
because a proof of service had not been received as per the deficiency
notice.
10. On October 11, 2024, petitioner filed an appeal with OCD, as a “Petition for
Reinstatement/Open.”
11. On October 31, 2024, respondent filed a motion to dismiss instead of an
answer under N.J.A.C. 6A:3-1.5(g).
CONCLUSIONS OF LAW
Under N.J.A.C. 6A:3-1.5(g), a party can file a motion to dismiss a petition instead
of filing an answer in a dispute concerning school laws. This regulation cited is analogous
to a motion to dismiss a complaint for failure to state a claim upon which relief can be
granted under R. 4:6-2(e). Under a R. 4:6-2(e) motion, the court is required to “search

OAL DKT. NO. EDU 15824-24
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the complaint in depth and with liberality [determine] whether the fundament of a cause
of action may be gleaned even from an obscure statement of claim.” Valantas v. Colgate-
Palmolive Co;, 109 N.J. 189, 192 (1988) quoting Di Cristofaro v. Laurel Grove Mem’l Park,
43 N.J. Super. 244, 252 (App. Div. 1957).
N.J.A.C. 6A:3-1.3(i) holds that petitions shall be filed “no later than the 90th day
from the date of receipt of the notice of a final order, ruling, or other action by the district
board of education.” The ninety-day limitation period “represents a fair and reasonably
necessary requirement for the proper and efficient resolution of disputes under the school
laws.” Kaprow v. Board of Educ. of Berkeley Twp., 131 N.J. 572, 582 (1993). It “provides
a measure of repose” and “gives school districts the security of knowing that
administrative decisions regarding the operation of the school cannot be challenged after
ninety days.” Ibid.
Courts strictly construe and consistently apply the 90-day limitation period.
Kaprow, 131 N.J. at 588-89; Nissman v. Bd. of Educ., 272 N.J. Super 373, 380-81, (App.
Div. 1994); Riely v. Bd. of Educ., 173 N.J. Super. 109, 112-14, (App. Div. 1980). This
period begins to run when the petitioner "learn[s] from the Local Board the existence of
that state of facts that would enable him to file a timely claim." Kaprow, 131 N.J. at 588-
89. Indeed, the "notice of a final order, ruling or other action" is "sufficient to inform an
individual of some fact that he or she has a right to know and that the communicating
party has a duty to communicate." Id. at 587. Notably, a petitioner need not receive official
and formal notification that they may have a valid claim to begin the 90 days. Id. at 588.
Moreover, the ninety-day period starts when a petitioner is made aware of the facts to permit
them to file a timely complaint.
The purpose of the ninety-day limitation, as discussed in Kaprow, 131 N.J. 586-
87, “is to stimulate litigants to pursue a right of action within a reasonable time so that the
opposing party may have a fair opportunity to defend, thus preventing the litigation of
stale claims.” Ochs v. Federal Ins. Co., 90 N.J. 108, 112, 447 A.2d 163 (1982). “The
second purpose is ‘to penalize dilatoriness and serve as a measure of repose’ by giving
security and stability to human affairs. Ibid. (quoting Farrell v. Votator Div., 62 N.J. 111,
115, 299 A.2d 394 (1973)).” Like this case, “when a plaintiff knows or has reason to know

OAL DKT. NO. EDU 15824-24
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that he has a cause of action against an identifiable defendant and voluntarily sleeps on
his rights so long as to permit the customary period of limitations to expire, the pertinent
considerations of individual justice as well as the broader considerations of repose,
coincide to bar his action.” Farrell, supra, 62 N.J. at 115.
In this case, petitioner attempted to file the appeal with the ninety-day requirement
under N.J.A.C. 6A:3-1.3(i). However, it was never deemed filed by OCD because it was
procedurally deficient. OCD provided petitioner with a formal deficiency notice. The notice
clearly stated the deficiency and how it was to be cured. The notice also expressly stated
that the appeal would be deemed withdrawn if the deficiency was not cured by December
14, 2023. Yet petitioner failed to cure by the specified date. Over a year later, on October
11, 2024, petitioner filed a Petition for Reinstatement and/or to Open the petition originally
filed on October 10, 2023. The only excuse petitioner provides for the late petition is that the
deficiency was inadvertently not cured.
Since this case does not involve an important and novel constitutional question or
an important question of public interest beyond that of concern only to the parties
themselves that warrants a relaxation of the limitation period, I CONCLUDE that petitioner
filed his petition in violation of the ninety-day statute of limitations under N.J.A.C. 6A:3-
1.3(i), and that this case must be dismissed.
ORDER
Given my findings of fact and conclusions of law, I ORDER that the Board’s motion
to dismiss is GRANTED and that this case is DISMISSED.
I hereby FILE this initial decision with the ACTING COMMISSIONER OF THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified or rejected by the ACTING
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized to
make a final decision in this matter. If the Acting Commissioner of the Department of Education
does not adopt, modify or reject this decision within forty-five days and unless such time limit

OAL DKT. NO. EDU 15824-24
6
is otherwise extended, this recommended decision shall become a final decision in accordance
with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was mailed
to the parties, any party may file written exceptions with the ACTING COMMISSIONER OF
THE DEPARTMENT OF EDUCATION. Exceptions may be filed by email to
ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies
and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500. A copy of any exceptions must be sent to the judge and to the other parties.
January 14, 2025
DATE BINDI MERCHANT, ALJ
Date Received at Agency: January 14, 2025___________________
Date Mailed to Parties: January 14, 2025___________________
am

OAL DKT. NO. EDU 15824-24

For Petitioner:

None

For Respondent:

None

APPENDIX

Exhibits