dissent">Herlihy, J.

(dissenting). At issue in this case is the power of the respondents to contract with an out-of-State public school. As found by the *952majority, there can be no dispute but that the selection of an appropriate school and entering into a contractual arrangement is solely for the respondents. If I understand the commissioner’s argument correctly, he is stating that section 4401 of the Education Law defines a "handicapped child” and "Special services or programs”. Section 4407 sets forth special provisions relating to instruction of such a handicapped child, and the department is authorized to contract with an educational facility located outside the State. To determine what constitutes an "educational facility” outside the State, it is necessary to revert back to subdivision 2 of section 4401, which provides, as pertinent: "f. Contracts with private non-residential schools which have been approved by the commissioner and which are outside of the state for special services or programs * * * h. Contracts with private residential schools which have been approved by the commissioner and which are outside the state for special services or programs.” Based upon this reasoning, the commissioner, through his counsel, concluded his authority was limited to private nonresidential schools. In my opinion, this is a correct interpretation of what might appear to be an ambiguity between the sections, but which in reality is not such. Accordingly, the commissioner’s determination properly interpreted the statute and there was no error of law. I would further note that there appears to be a valid distinction between nonresidential public and nonresidential private schools. By way of contract as authorized in section 4407, the commissioner can dictate as to nonresident private schools the terms and conditions thereof as to the special services and programs. It would be doubtful if he could so contract with a nonresidential public school, an agency of a foreign State. The judgment of Special Term should be reversed and the determination should be confirmed.

Citation profile

How this case has been treated — in progress