MATTER OF VITO v. Nyquist

43 N.Y.2d 681 (1977)

In the Matter of Edith De Vito et al., Appellants, v. Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.

Court of Appeals of the State of New York.

Argued October 5, 1977.

Decided November 15, 1977.

Michael A. Rebell for appellants.

Lawrence W. Reich and Robert D. Stone for Ewald B. Nyquist, respondent.

Eugene J. Fox, Corporation Counsel (Arthur J. Doran, Jr., of counsel), for Board of Education of the City of Yonkers, respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

*682MEMORANDUM.

The order of the Appellate Division should be affirmed.

The Board of Education for the City of Yonkers decided to close seven schools within the district, including School 15. Petitioners appealed the board's decision to the commissioner (see Education Law, § 310), alleging that the board had failed to consider the safety of pupils forced to travel hazardous routes to reach their reassigned schools. The commissioner, on an adequate record before him, affirmed the board's decision, which he found to have been "based on a number of factors, including the safety of pupils."

The standard of judicial review for decisions of the commissioner is now governed by CPLR 7803 (subd [3]) (see L 1976, ch 857, amdg Education Law, § 310, eff Oct. 25, 1976). Of the three grounds for overturning agency action within that subdivision, the only issue now before us is whether the determination made by the commissioner was arbitrary and capricious (see Matter of Colton v Berman, 21 N.Y.2d 322, 329). We agree with the Appellate Division that the commissioner's affirmance possesses the requisite degree of rationality and *683 was neither arbitrary nor capricious (see Matter of 330 Rest. Corp. v State Liq. Auth., 26 N.Y.2d 375; Matter of Taub v Pirnie, 3 N.Y.2d 188, 194-195).

Order affirmed, with costs, in a memorandum.