#### Robert Corliss et al., Individually and as Residents and Taxpayers of the City of Poughkeepsie School District, Respondents, v Mary Solomon et al., Constituting the Board of Education of the City of Poughkeepsie School District, Appellants.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the City of Poughkeepsie School District, dated July 5, 1979, to close the W. W. Smith School, the appeal is from a judgment of the Supreme Court, Dutchess County, dated August 30, 1979, which granted the petition and "annulled and set aside” the determination to close the school. Judgment reversed, on the law, and proceeding dismissed on the merits, without costs or disbursements. Petitioners commenced this article 78 proceeding to prevent the Board of Education of the City of Poughkeepsie (board) from closing the W. W. Smith School for budgetary reasons, because the board failed to comply with sections 1608-a and 1716-a of the Education Law, which required the board to submit annually to the Commissioner of Education a report on the projected needs of the school district. Although petitioners commenced this proceeding without first availing themselves of an appeal to the Commissioner of Education pursuant to section 310 of the Education Law, the proceeding is nonetheless properly before the court (see *Matter of Ellis v Dixon,*281 App Div 987, cert dsmd 349 US 458; *Matter of Greve v Board of Educ.,*72 Misc 2d 791, 793, affd 43 AD2d 851, affd 36 NY2d 673; *Matter of Seales v Board of Educ.,*41 Misc 2d 391, 393). However, the reviewing court may only annul a discretionary determination of an administrative body, in this case, the board of education, if the determination is illegal, arbitrary, or capricious (see *James v Board of Educ.,*42 NY2d 357; *Matter of Pell v Board of Educ.,*34 NY2d 222; *Delfino v Carmody,*56 AD2d 833). On this record, it *838cannot be said that the board’s determination was illegal, or arbitrary in any respect. Shortly after he took office on January 1, 1979 School Superintendent Peter P. Horoschak hired a business consultant, John Blank, to assist in devising a budget for the school system. In early April, Mr. Blank submitted findings to the board, estimating a $500,000 reduction in the school district’s taxation authority, and predicting a budget deficit of $2,000,000 if school programs remained unchanged in the 1979-1980 school year. On April 17, 1979, Mr. Blank conferred with the board at a meeting open to the public, and reported his findings at that meeting. The possibility of school closings was discussed. On or about May 7, 1979, Mr. Horoschak obtained memoranda from the school principals in the district discussing the impact that the closing of two schools, and the redistribution of the students from those schools to other schools, would have on school programs. On June 6, 1979, at an open meeting, the board discussed the question of which two schools to close down. Mr. Horoschak submitted, *inter alia,*a report prepared by Dr. Dominick A. De Simone of the Division of Educational Facilities Planning of the New York State Department of Education, which analyzed the capacity of each elementary school in the district. That report noted that the W. W. Smith School, with a capacity of 357 students, was the second smallest school in the district. The smallest was the Franklin School, with a capacity of 300. At that June 6 meeting Mr. Horoschak discussed the importance of maintaining the neighborhood school concept (to, *inter alia,*minimize transportation costs). Dividing the city into "quadrants” Mr. Horoschak suggested "closing either the Warring or Smith School in the Northeast quadrant and closing one or two of the following schools in the Northwest quadrant: Franklin School, Columbus School and Morse School”. Thereafter, public meetings were conducted on June 13, 1979, June 14, 1979, and June 19, 1979, and citizens were given the opportunity to comment. Petitioner Corliss, president of the W. W. Smith School’s Parent-Teachers’ Association, spoke at the meeting of June 13. The board decided to close the Franklin School, which would have required extensive renovation to keep open. That closing is not challenged in this proceeding. On July 5, 1979, the board voted to close the W. W. Smith School, primarily because its capacity of 357 students was considerably less than that of the Warring School, which could accommodate 509 students. On this record it cannot be said that the board’s determination was devoid of a rational basis. It is apparent that the decision to close the W. W. Smith School was reached only after careful consideration of the needs of the school district. That alternatives may have been available, and that the board failed to file long-range reports with the Commissioner of Education, did not render its determination illegal, arbitrary or capricious. Therefore, the judgment must be reversed and the proceeding dismissed (see *James v Board of Educ.,*42 NY2d 357, *supra; Delñno v Carmody,*56 AD2d 833, *supra).*Mollen, P. J., Hopkins, Titone and Mangano, JJ., concur.