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Supreme Court, Appellate Division, Third Department, New York.

IN RE: David CRAWMER, Appellant, v. Richard P. MILLS, as Commissioner of Education of the State of New York, et al., Respondents.

Decided: May 22, 1997

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and CASEY, JJ. Philip J. Vecchio, East Greenbush, for appellant. Dennis C. Vacco, Attorney-General (Mara B. Ginsberg, of counsel), Albany, for Richard P. Mills, respondent. Ferrara, Fiorenza, Larrison, Barrett & Reitz (Norman H. Gross, of counsel), East Syracuse, for Board of Education of East Greenbush Central School District, respondent.

Appeal from a judgment of the Supreme Court (Hughes, J.), entered June 3, 1996 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Education denying petitioner's appeal challenging the validity of a referendum approving a bond resolution of respondent Board of Education of East Greenbush Central School District.

By a vote of 1,935 to 1,862 at an April 5, 1995 special election, the residents of the East Greenbush Central School District in Rensselaer County approved the issuance of up to $29,730,540 in bonds to fund various repairs and improvements at six schools throughout the District.   Petitioner thereafter filed an appeal with respondent Commissioner of Education, claiming that respondent Board of Education of East Greenbush Central School District influenced the outcome of the vote with inaccurate and misleading information in three newsletters mailed to residents' homes.   The Board of Education responded that the subject newsletters contained accurate information, were merely informational in nature and, as such, did not fall within the proscription of Matter of Schulz v. State of New York, 86 N.Y.2d 225, 630 N.Y.S.2d 978, 654 N.E.2d 1226, cert. denied 516 U.S. 944, 116 S.Ct. 382, 133 L.Ed.2d 305.   In his reply, petitioner raised several new allegations, claiming that the Board of Education concealed the true intended use of the bond money, that its informational meetings were open only to those who had been specifically invited and that the Board of Education offset the present debt service payments to reduce the bond's total cost to residents and used an incorrect interest rate to calculate the bond's total cost.   The Commissioner dismissed petitioner's appeal, prompting this CPLR article 78 proceeding.   Supreme Court dismissed the petition and petitioner now appeals.

 Initially, we agree with respondents that the Commissioner properly refused to address arguments that were first raised in petitioner's reply.   Fundamentally, a reply is intended to respond to new matter or defenses pleaded in the answer (8 NYCRR 275.14) and “not to buttress allegations in the petition or to belatedly add new assertions which should have been included in the petition” (Appeal of Perry, 36 Educ. Dept. Rep. 141, 143).   We also conclude that Supreme Court did not err in refusing to address arguments that had not been raised before the Commissioner (see, Matter of Schulz v. State of New York, supra, at 232, 630 N.Y.S.2d 978, 654 N.E.2d 1226).   Nor are we persuaded that Supreme Court erred in applying the arbitrary and capricious standard of review.  Education Law § 2037 provides that:

All disputes concerning the validity of any district meeting or election * * * shall be referred to the commissioner of education for determination and his decisions in the matter shall be final and not subject to review.

In cases such as this where this court must review the Commissioner's decision under Education Law § 2037, the proper standard is whether the determination was arbitrary, capricious or irrational (see, Matter of Capobianco v. Ambach, 112 A.D.2d 640, 640-641, 492 N.Y.S.2d 157;  see also, Matter of Board of Educ. of Sewanhaka Cent. High School Dist. v. Sobol, 210 A.D.2d 675, 619 N.Y.S.2d 390;  Matter of Connor v. Deer Park Union Free School Dist., 195 A.D.2d 216, 219, 607 N.Y.S.2d 742).   Accordingly, petitioner's demand for de novo review was properly rejected.

 Addressing such of petitioner's contentions as were properly raised at the administrative level, we conclude that the Commissioner was not arbitrary, capricious or irrational in his determination that the Board of Education's newsletters did not improperly advocate for the passage of the bond issue and that petitioner failed to establish either that the Board's published cost figures were inaccurate or that the claimed irregularities likely affected the outcome of the election (see, Matter of Davis v. Commissioner of Educ. of State of N.Y., 189 A.D.2d 1046, 1048, 593 N.Y.S.2d 342).   Indeed, petitioner did not introduce any evidence that the voters would have rejected the issuance of the bonds if the Board had not distributed the newsletter, and the Board opposed the administrative petition with financial data that provided ample justification for its publicized cost figures.   In addition, under the standards set forth in Matter of Schulz v. State of New York (supra ) and Matter of Phillips v. Maurer (67 N.Y.2d 672, 499 N.Y.S.2d 675, 490 N.E.2d 542), we are not persuaded that the newsletters urged the voters to endorse the bond issue.   Rather, the materials merely explained why the Board favored bonded indebtedness over a straight tax increase as a financing mechanism, where deficiencies existed in the school structures and how the bond money would help rectify the problems.

Petitioner's remaining contentions have been considered and also found unavailing.

ORDERED that the judgment is affirmed, without costs.

MERCURE, Justice.

CARDONA, P.J., and MIKOLL, CREW and CASEY, JJ., concur.

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