Plaintiff and his daughter live in the town of Huntington, Suffolk County. Plaintiff’s daughter, born on October 1964, is afflicted with a condition diagnosed as nerve deafness. She has been attending school at a certain school for the deaf in Nassau County at the age of three. Her right to continue her education there is neither threatened nor disputed by the school or any other agency. The only issue involved is her transportation from where she resides to the school, at a distance of about seventeen miles. Despite application to various agencies, the burden of her transportation has remained with her parents. By reason of this, plaintiff filed a petition with the Supreme Court of Suffolk County for their expenses. As indicated in plaintiff’s affidavit, it is a heavy burden, indeed, in terms of time, effort and expense. Plaintiff then moved for a summary judgment to declare: that plaintiff’s infant child is entitled to be educated at the School for the Deaf, as a deaf child, pursuant to section 4201 of the Education Law; that defendant Board of Education, Union Free School District No. 1 of the Town of Huntington is obliged to and shall pay for the transportation of plaintiff’s child to said school; or, in the alternative, that defendant Board of Supervisors of the County of Suffolk is obliged to and shall pay for the transportation of said child to said school, located in Nassau County.
The issue for the criminal court to resolve is whether or not it has jurisdiction to direct the respondents, or either of them, to assume the transportation burden.
First, plaintiff argued that pursuant to section 4201, Article 85 of the New York State & Education Law, Instruction of the Deaf and of the Blind, his child is entitled to free transportation to and from the school; and that, although the article is silent with respect to transportation, by enactment thereof, the legislature impliedly intended that children attending such schools shall be furnished with free transportation. As provided for under Article 85, deaf children, three years of age or older and residents of the state for at least one year, are eligible for attendance at certain institutions designated, including the school for the deaf where plaintiff’s daughter is attending, and those attending shall be provided with board, lodging and tuition, as well as with clothing whenever their parents or guardians are unable to furnish the same. However, the court cannot agree with plaintiff’s argument. If free transportation was indeed the legislative’s intent, the article would have so stated. For example, Article 87 of the Education Law, entitled New York State School for the Blind, not only makes provision for the Instruction of blind persons of suitable age and capacity, but specifically provides for their traveling expenses. Thus, while it appears that plaintiff’s daughter is, in all respects, attending the school pursuant to section 4201 of the Education Law, the relief requested is moot and is, accordingly, denied.
Second, there is the question of whether the court has jurisdiction to direct that the burden of the child’s transportation be borne by respondent school board. The court has examined all applicable statutes of the State Education Law, including section 4404, which speaks of school boards’ power and duty to provide transportation for physically handicapped children irrespective of the school they legally attend. However, it has found no statute which imposes upon school boards the duty to provide free transportation for any child less than five years of age. While no statute precludes the assumption of such obligation, and it may well be that some school boards do furnish free transportation for younger children attending classes at a school for the deaf, the court finds no authority to direct a local school board to supply such transportation, as a matter of right. The court must take judicial notice of the fact that while directors of the institutions enumerated under section 4201 receive an appropriation from the state for each pupil in attendance, they are privately owned institutions and not public schools. The school where plaintiff’s daughter is attending, for example, is a Lutheran school. On appeals brought before the state Commissioner of Education, it has been held that even in cases involving elementary and secondary school age pupils, the payment of transportation to a non-public school by local school boards will not be ordered where the distance from the residence of the child exceeds eight miles and the voters of the district have made no provision for such transportation. This is pursuant to the ruling of the court in the Matter of Appeal of John Kennedy; Matter of Appeal of Clarence H. Patnaude, et al.,; and the Matter of Bordner, et al., where the Commissioner held that where a child is too young to be entitled, as of right, to attend the Public schools of the district, it logically follows that such child is not entitled to transportation to any school. Thus, the requested relief on this issue must also be denied.
Third, or as an alternative request, there is the issue regarding the obligation of the Board of Supervisors of Suffolk County to pay for the child’s transportation. Plaintiff has previously applied to the Family Court for an order directing such payment, which request has allegedly been denied on the ground that the county has made no appropriation therefor. Here, it must be noted that under Resolution No. 308, the Board of Supervisors of the County of Suffolk has appropriated funds for transportation of handicapped children, beyond the eighth grade, to the School for the Deaf where plaintiff’s daughter is attending, but no such appropriation has been made for younger children. It is not denied that the County provides free tuition as well as free transportation to the Suffolk School for the Deaf, which is a public school, as well as the Cleary School for the Deaf. Both are fully accredited schools, located in Suffolk County, for deaf children from three years of age through the eighth grade. According to plaintiff, while his daughter is eligible for admission to either of those schools, it would be preferable for his daughter to continue at the school for the deaf in Nassau County. The court agrees. It is usually preferable for a child to continue at the school where she is making satisfactory progress. Further, according to plaintiff, County Resolution No. 308 is violative of Article 85 of the State Education Law, since the former appropriates funds for transportation to plaintiff’s daughter’s school, only for children beyond the eighth grade, and the latter entitles children to attend said school, commencing at age three. With this, the court cannot agree. To reiterate, Article 85 makes no provision for such transportation, regardless of age. Now, the main question is whether or not the court has jurisdiction to direct the County to pay for the child’s transportation to the school in Nassau County, under Article 89 of the State Education Law, on the ground that she is physically handicapped. Notably, Section 4403, Article 89 of the State Education Law, outlines the procedure for the application to the Family Court, for the cost of educational services, including transportation, for handicapped children. It provides that the state education department has the power and duty to provide within the limits of the appropriations made therefor, home-teaching, transportation, scholarships in non-residence schools, tuition or maintenance and tuition in elementary, secondary, higher, special and technical schools, for handicapped children in whole or in part from funds of the department, when not otherwise provided by parents, guardians, local authorities or by other sources, public or private. It further provides that when the family court or the board of education of the city of New York issues an order to provide for the education, including home-teaching, transportation of any handicapped child, the commissioner of education, if he approves such order, shall also issue a certificate to such effect in duplicate, one of which shall be filed with the clerk of the board of supervisors or other governing elective body of the county or chief fiscal officer of a city and one in the office of the commissioner of education; and one half of the cost of such services shall be charged against the county and the other half appropriated and paid for by the state. However, if the family court refused to issue such an order, the court is without authority to direct it to do so, since it has no jurisdiction to review decisions of that court. Moreover, since the county does provide transportation for deaf children beyond the eighth grade to plaintiff’s daughter’s school and for younger children, starting at age three, to accredited schools within its own county, the court finds no authority, under section 4403 or under any other section, to direct the county to appropriate funds or to pay for the transportation of children below the eighth grade to plaintiff’s daughter’s school. Thus, requested relief on this issue must also be denied.
Clearly, there were no triable issues of fact raised. Thus, since there is no common law right to the relief requested and no statutory provision therefor, the complaint was dismissed.
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