I respectfully dissent and vote to affirm. In matters of this nature our review is limited to inquiring whether a rational basis exists for the commissioner’s decision; it is the propriety and logic of his decision, not the school board’s, which is before us (Matter of Gundrum v Ambach, 55 NY2d 872). Gauged by this standard, the commissioner’s conclusion that both students were in “like circumstances” should not be faulted.
Noting their respective child’s lack of progress in school, the parents of these two children determined that they would perform more satisfactorily in another school. Re*215quests for transportation, to the same parochial school, were then made on behalf of each child; both requests were tardy. The only difference in the children’s circumstances is that the decision to enroll the Germaine child in parochial school originated with her parents, while the recommendation to enroll the other child, whose transportation request was honored, emanated from the school district’s representatives. In my judgment, the commissioner, in interpreting the statutory language, acted reasonably and well within his authority when he found this to be an insubstantial distinction.
Kane, J. P., Main and Mikoll, JJ., concur with Levine, J.; Yesawich, Jr., J., dissents and votes to affirm in an opinion.
Order and judgment modified, on the law, by reversing so much thereof as dismissed the petition and sustained the determination of respondent Commissioner of Education directing petitioner to provide transportation to and from the nonpublic school for the daughter of respondents Raymond F. and Jane E. Germaine; petition granted, determination annulled and counterclaims dismissed in their entirety, and, as so modified, affirmed, without costs.