¶1We are in accord with the majority’s holding that, under the circumstances presented here, Special Term could properly consider the merits of petitioner’s application on the motion to dismiss without awaiting joinder of issue. However, we disagree with the majority insofar as it upholds respondents’ determination barring petitioner from reapplying for temporary release for a period of one year.
¶2It is true, as the majority notes, that participation in the temporary release program is statutorily denominated a privi*630lege and not a right (Correction Law § 855 [9]). However, no such qualification is placed upon an inmate’s prerogative to apply for participation. Here, the statute clearly states that "[a]ny eligible inmate may make application to the temporary release committee for participation” (Correction Law § 855 [2]). The statute further directs the temporary release committee to consider each such application on its merits, i.e., whether the inmate’s participation in the program "is consistent with the safety of the community and the welfare of the applicant” (Correction Law § 855 [4]). Nowhere in the statute is the Commissioner of Correctional Services or a temporary release committee authorized to set additional disabling restrictions upon an eligible inmate’s right to apply for the program.
¶3It is uncontested that petitioner is eligible under the statutory definition (Correction Law § 851 [2]). Perhaps the Commissioner by regulation could impose some reasonable limits on the frequency of reapplication for the program by unsuccessful applicants, for purposes of administrative convenience and to insure orderly procedures for administering the program. The Commissioner has not promulgated such administrative regulations, despite the apparent statutory direction to do so (Correction Law § 852 [1]). In any event, however, prohibiting petitioner from reapplying for the program for a year goes well beyond any restrictions on reapplication which respondents might reasonably have imposed in order to regularize the application process. In effect, respondents by administrative fiat have rendered petitioner ineligible to participate in the program for a year, although he meets all the statutory requirements for eligibility. An administrative agency may not by regulation or individual determination create disabilities or enlarge its powers beyond its express or reasonably implied authority under the statute it is delegated to enforce (Matter of Jones v Berman, 37 NY2d 42, 53; Matter of Republic Steel Corp. v New York State Dept. of Labor, 75 AD2d 658, 659).
¶4Therefore, we would affirm Special Term’s annulment of so much of the determination as prohibited petitioner from reapplying for the temporary release program for one year.