L., In re

• Decision Date: 04 April 1973
• Citation: 73 Misc.2d 723,342 N.Y.S.2d 231
• Parties: In the Matter of Dara L. * An allegedly physically handicapped child. Family Court, City of New York, New York County
• Court: New York City Court

Page 231

342 N.Y.S.2d 231

73 Misc.2d 723

In the Matter of Dara L. ^* An allegedly physically handicapped child Family Court, City of New York, New York County.

April 4, 1973.

Quint, Marx & Chill by Benjamin Hager, Brooklyn, for petitioner.

James H. Whitney, Albany, for State Commissioner of Ed.

Norman Redlich, Corp. Counsel, by Mary P. Bass, New York City, for City of New York.

DECISION

NANETTE DEMBITZ, Judge:

This is a proceeding under section 232(a)(1) of the Family Court Act of New York State for an order for special educational services for a physically handicapped child. Petitioner-mother seeks a determination that the City of New York should pay the tuition charge at a private educational institution for her 13 year old daughter, on the ground that no appropriate services are provided for her in the public schools in the district in which she resides. The child's need for special education is conceded by all parties, as well as the propriety under section 232(a)(1) of an order for payment for such education by the City of New York. In controversy is the motion by the City of New York for an order under section 4403 of the New York State Education Law directing the State of New York to reimburse the City for one-half of the cost of the child's tuition. The State, through the State Commissioner of Education, contests this Court's jurisdiction to make such order for reimbursement as well as the State's liability for reimbursement under the circumstances of this case. This Court holds that it lacks jurisdiction to direct reimbursement by the State despite the fact that such reimbursement appears proper.

Section 4403 of the Education Law provides:

'1. . . . When the family court . . . shall issue an order to provide for the education . . . of any handicapped child the commissioner of education, if he approves such order, shall issue a certificate to such effect . . .

'2. One-half of the cost of providing . . . tuition and maintenance, as provided in subdivision one of this section, as certified by the commissioner of education, is hereby made a charge against the county or city in which any such handicapped child resides, and the remaining one-half of the cost thereof shall be paid by the state out of moneys appropriated therefor . . .'

The State Commissioner bases his argument against reimbursing the City pursuant to section 4403 on statutory construction. He argues that certain provisions of the Social Services Law mandate the unreimbursed payment by the City, through its Social Services Commissioner, of the entire cost of this child's tuition because she is receiving public assistance for living expenses. ¹

The authority of the State Commissioner of Education under section 4403 to approve or disapprove this Court's order is unquestionably subject to judicial review. Compare Board of Education v. Allen, 6 N.Y.2d 127, 136, 188 N.Y.S.2d 515, 520, 160 N.E.2d 60, 64. In urging that this Court has jurisdiction to conduct such review, the City stresses the circumstance that only legal rather than factual issues are involved in the State Commissioner's refusal to reimburse the City. This circumstance affects, in this Court's opinion, the standard of review to be employed by the reviewing court; that is, the principle that the Commissioner's decision is to be upheld unless 'purely arbitrary' ² appears inapplicable. On the issue here involved--the construction of the Social Services Law--it appears that the question should be decided De novo by the reviewing Court, there being no presumption in favor of the Commissioner's construction of a statute he does not administer. However, as with any statutory authority, the Commissioner's exercise of his power under section 4403 necessitates an initial administrative judgment on legal as well as factual questions (compare Oliver v. Donovan, 293 F.Supp. 958, 965 (E.D.N.Y.1968)); and the fact that here the Commissioner's refusal to reimburse is based on a legal ground does not affect the issue of this Court's jurisdiction to review his action.

There is no indication in the Family Court Act that the Family Court is to exercise jurisdiction with regard to State reimbursement under Education Law section 4403. Section 232(a)(1) of the Family Court Act merely provides that the cost of special educational services is to be a charge upon the county of the child's domicile. The general provisions of section 115 of the Family Court Act as to this Court's exercise of 'such other jurisdiction as is provided by law', are of no avail. Rather than providing for such jurisdiction, the language of section 4403 that the Commissioner is to approve the Family Court order, negates the view that the Family Court has jurisdiction to direct the Commissioner to issue the certificate for reimbursement. While the State Commissioner cannot of course countermand the Family Court's order for payment by the county under section 232(a)(1), the Legislature apparently intended that the Commissioner make his own appraisal of the child's need for the purpose of payment by the State.

Nor...