63 A.D.2d 1058 | N.Y. App. Div. | 1978
Appeal from a judgment of the Supreme Court at Special Term, entered September 19, 1977 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review respondent’s refusal to approve a contract between petitioner’s local school district and the Trinity-Pawling School. Petitioner Mark Lombardi is a neurologically impaired student of high school age. Under the provisions of article 89 of the Education Law, his local school district, upon the recommendation of its Committee on the Handicapped, may contract for "special services or programs” with a private school provided the approval of the Commissioner of the State Education Department is obtained. Petitioner was recommended by the Committee on the Handicapped to attend the Trinity-Pawling School. This was approved by the local school district, which then sought the commissioner’s authorization to enter into a contract with the Trinity-Pawling School. The commissioner denied this request because Trinity-Pawling was not an approved school for the handicapped and advised the local district to seek an approved school. Petitioner commenced the present article 78 proceeding and challenged such refusal on the ground that it was arbitrary and capricious. Special Term found against petitioner and dismissed the petition. This appeal followed. On this appeal, petitioner contends that at Special Term respondent did not contest petitioner’s allegation that Trinity-Pawling School was the only available appropriate school suitable to the needs of petitioner and, therefore, Special Term erred in rejecting such allegation as merely a conclusory statement. We disagree. Respondent did raise the issue at Special Term and further