Gundrum v. Ambach

Yesawich, Jr., and Herlihy, JJ.,

dissent and vote to reverse in the following memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (dissenting). Petitioner’s request of the board of education to furnish his daughter with transportation to a nonpublic school was denied because the distance between his residence and the school exceeded 15 miles, the maximum statutory distance for which transportation need be provided (Education Law, § 3635). Since we believe there to be a reasonable basis for that determination, we would reverse Special Term and dismiss the petition. In matters of this'sort, a board of education is to be accorded considerable discretion. As a consequence, unless it clearly appears that the board’s measurement was arrived at irrationally or was prompted by animus, it should be sustained. Here there is no showing that it was not the board’s policy, when determining entitlement to transportation, to calculate distances from the driveway of the student’s home. Using residence driveways as a terminus is certainly reasonable. That there is a school bus stop about one tenth of a mile nearer the school, located at a lumber mill on petitioner’s property, is of no real significance, for the statutory formula is not geared to bus stops, which obviously can be altered, but to the student’s residence. Nor is there any showing that the board acted inconsistently, or in my judgment arbitrarily, when it elected to measure the distance to the school’s Elmgrove Avenue entrance, the nearest accessible school gate, rather than to the Pinewoods Avenue gate. Although the Pinewoods Avenue gate was closer to petitoner’s residence, it was chained and displayed a sign directing use of the Elmgrove Avenue entrance. An even more compelling reason for upholding the board’s determination is the fact that there is evidence in the record from the superintendent of schools that the distance from petitioner’s residence to each of the entrances, measured by three different vehicles, exceeded 15 miles. Although petitioner challenges the accuracy of those measurements, they do provide ample justification for respondents’ determination.