We would affirm on the opinion of Special Term (Williams, J.) in which it was stated: "The Commissioner’s regulation cannot be considered arbitrary or an abuse of discretion in the absence of a clear directive or intent from the Legislature. There appears to be a reasonable basis for the regulation and it therefore should not be overturned. Campo Corp. v. Feinberg, 279 A.D. 302, aff'd 303 N.Y. 995.”
We would add the following comment that since the petitioner received a portion of these costs as revenues, it is neither unfair nor arbitrary to include them in total revenues in calculating the deficit.
Koreman, P. J., and Greenblott, J., concur with Main, J.; Larkin and Herlihy, JJ., dissent and vote to affirm in an opinion by Herlihy, J.
*285Judgment reversed, on the law, without costs, and judgment directed to be entered declaring 10 NYCRR 40.11 (1) invalid, and directing respondents to reimburse Erie County for the subject fringe benefit expenses.