In my view the judment in favor of the plaintiff in this case should be reversed and the complaint dismissed because it is the public policy of this State that no cause of action exists to recover for so-called educational malpractice (Donohue v Copiague Union Free School Dist., 64 AD2d 29).
In the Donohue case, this court decided that the strong public policy of this State was to avoid judicial interference in *398educational matters and that the recognition of a cause of action sounding in negligence to recover for so-called "educational malpractice” would impermissibly require the courts to oversee and, with hindsight, to evaluate the professional judgment of those charged with the responsibility for the administration of public education. As was predicted in Donohue, this case has involved the courts in an evaluation of judgments and actions of educators. In addition, the jury here was required to decide, among other issues "whether certain tests should have been administered or test results interpreted in one way rather than another” (64 AD2d, at p 35). The result was a trial transcript of some 2,036 pages, wherein the parties explored every facet of the plaintiff’s education. Questions as to the propriety of educational judgments and actions are. inappropriate for resolution in the judicial arena (James v Board of Educ., 42 NY2d 357).
The majority opinion contains a forceful denunciation of the "injury” allegedly done to plaintiff by the defendant, but overlooks what is readily apparent from its own statement of the facts, namely that plaintiff suffered from a severe speech disorder in early childhood before he ever attended one of the defendant’s schools, that his other learning problems flowed from his inability to communicate effectively and that his speech was at least no worse when he completed his course of instruction than when it began. In Donohue (supra, p 37), this court held that "the failure of educational achievement cannot be characterized as an 'injury’ within the meaning of tort law”. The purpose of the public schools is to confer the benefit of an education upon what would otherwise be an uneducated public. The failure to reach educational objectives with respect to a particular student does not result in an "injury” since the student commenced his education lacking knowledge, education, experience and, in this case, proper speech patterns. Hence, the failure to teach him how to speak properly has left him no worse off than when his schooling started.
The benefit of retrospection has enabled the plaintiff to convince a jury and the majority of this court thát the defendant wrongfully placed him in a class for the mentally retarded and that he was severely damaged thereby. However, the record is clear that during the time he was in a CRMD class no protest against that placement was ever lodged by plaintiff or his mother and that throughout his schooling the plaintiff received the best speech therapy program that the *399defendant offered to any pupil. He received instruction in social studies, mathematics, English and science and he is now able to read and write. Moreover, those of his teachers who were called to testify all gave their opinion that plaintiff would not have been able to function in a regular class. Thus, the total picture is not as dire as the one painted in the majority opinion. The defendant in this case may have failed to remedy plaintiff’s speech problems, but it did not cause or aggravate them.
The majority seeks to distinguish the Donohue case upon the ground that it involved "nonfeasance” whereas this case involves "misfeasance”. Quite apart from the fact that the complaints in both cases allege acts both of omission and commission, the main thrust of the plaintiff’s case at bar was that the defendant failed to retest plaintiff within two years after his placement in a CRMD class as recommended by its own psychologist. This act of omission is one of nonfeasance, which is defined as the failure to perform an act which a person should perform (65. CJS, Negligence, § 2 [6], p 470; Black’s Law Dictionary [4th ed], p 1208; see Prosser, Torts [4th ed], § 56). In Donohue, the gist of the plaintiff’s cause of action was that although the defendant had given him instruction in reading, it had not done so properly or effectively and therefore he could not read upon graduation. This was an act of commission or misfeasance, which is defined as the improper performance of a lawful act (Black’s Law Dictionary, supra, p 1151).
Even if the majority had assigned the alleged misfeasance and nonfeasance to the proper case, the distinction it seeks to draw is immaterial. Negligence exists when injury results from the violation of a legal duty that one owes to another, whether the act in violation be active or passive, of commission or omission, of misfeasance or nonfeasance (see 65 CJS, Negligence, § 2 [6], p 471; Indiana Harbor Belt R. R. Co. v Jones, 220 Ind 139; Taylor v Northern States Power Co., 196 Minn 22; Hoeverman v Feldman, 220 Wis 557; see, also, Mazloum v New York, New Haven & Hartford R. R., 115 NYS2d 238). The essential questions are whether a duty exists and whether it was breached, not whether the defendant’s conduct in breaching the duty was active or passive. Donohue holds squarely that no such duty exists.
In my view, the result reached by the majority in this case arises from its implicit disagreement with the holding in *400Donohue. As above demonstrated, the grounds upon which the majority seeks to distinguish Donohue are legally unsound and, therefore, on established principles of stare decisis the judgment appealed from should be reversed and the complaint dismissed. The failure of the court to follow its own obviously controlling recent decision can lead only to uncertainty and a lack of stability in the law (see 1 Carmody-Wait 2d, NY Prac, § 2:50 et seq.).
Cohalan and O’Connor, JJ., concur in the opinion of Shapiro, J.; Martuscello, J. P., and Damiani, J., dissent and vote to reverse the judgment and dismiss the complaint, with separate opinions.
Judgment of the Supreme Court, Queens County entered November 3, 1976, reversed, on the law, and new trial granted with respect to the issue of damages only, with costs to abide the event, unless, within 20 days after entry of the order to be made hereon, plaintiff shall serve and file in the office of the clerk of the trial court, a written stipulation consenting to reduce the verdict in his favor to $500,000, and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed, without costs or disbursements.