#### In the Matter of the Board of Education of the City School District of the City of Mount Vernon, Petitioner, *v.*James E. Allen, Jr., as Commissioner of Education of the State of New York, Respondent, and Jeffrey L. King, by His Father, Lloyd King, Jr., et al., Intervenors-Respondents.

Supreme Court, Special Term, Albany County,

February 18,1970.

*Demov, Morris, Levin Jo Shem*for petitioner. *Robert D. Stone, John P. Jehu*and *Louis H. J. Welch*for Commissioner of Education, respondent. *Jack Gf&enberg*and *Sylvia Drew*for intervenors-respondents.

Harold E. Koreman, J.

The attorneys for the parties having requested the court to withhold submission of an order pursuant to its memorandum decision of September 30, 1969 (60 Misc 2d 926) pending discussions among them concerning procedures to be followed herein, said decision is recalled for the purpose of reflecting the agreement of the parties as to such procedure.

This is a proceeding brought pursuant to article 78 of the CPLR to annul and set aside an order of respondent Commissioner of Education which directed petitioner to effect a reas*201signment of students in grades one through six in petitioner’s school district to overcome purported racial imbalance.

Following dismissal of the petition on motion of respondents for failure to allege facts sufficient to constitute a cause of action, the Appellate Division (32 A D 2d 985), in a decision dated July 1, 1969, reinstated this proceeding. The appellate court held that on a motion in the nature of a demurrer the allegations in the petition are deemed to be true and considered in their most favorable light in support of the petition; that the petition alleges arbitrariness on the part of the Commissioner because it is financially impossible for the City of Mount Vernon to implement the Commissioner’s plan. Without resolving that question, the Appellate Division stated that “ to require the implementation of a plan which is financially impossible to obey is clearly 1 pure arbitrariness ’ ”. Respondents have now filed answers, together with objections in point of law, and again seek dismissal of the petition. Petitioner contends that a hearing is required so that it can be afforded an opportunity to present evidence to establish that implementation of the Commissioner’s order is financially impossible.

Respondent Commissioner’s position is that there is no necessity for a hearing since the costs claimed by petitioner, such as cross-bussing of children, providing hot lunches and other costs, are not required by the Commissioner’s order, or by law, and thus would have no relevancy to the determination of this proceeding. Respondents-intervenors assert that even though such services are not required, petitioner must furnish them, but, in any event, there should be no judicial interference with the Commissioner’s order, and petitioner is not entitled to a hearing on the question of its financial ability to carry out the order.

On the oral argument, all parties agreed that the threshold question to be determined by this court was whether or not a hearing should be held, and, consequently, the court will confine itself to this issue at this time. In my opinion a hearing is necessary for a proper determination of the question of whether or not it is financially impossible for petitioner to carry out the plan ordered by the Commissioner. While the respondent Commissioner argued on this application that evidence concerning costs of services not specifically ordered or required by law would be irrelevant and immaterial, the court concludes that petitioner should be afforded an opportunity to present evidence concerning the services it will in fact be called upon to furnish and their cost. However, the Commissioner, in his order, pointed out quite clearly that he was aware of the fact that the steps contemplated by his order would require the *202expenditure of funds not budgeted by petitioner School district and noted that, in addition to other provisions for State aid available, substantial funds could be allocated to petitioner in accordance with regulations promulgated by the Commissioner to aid school districts' having a heavy concentration of pupils with special educational needs associated with poverty. In addition, special financial assistance is available to school districts such as petitioner for programs designed to correct racial imbalance. It does not appear that petitioner has sought any assistance from the Commissioner or from any other source, nor is it alleged that it has. Under the present circumstances, therefore, the actual cost to petitioner for implementation of the plan could not be determined at a hearing until a determination is made of the assistance available to petitioner. It would appear, therefore, that petitioner’s request for a hearing at this time is premature.

.Accordingly, the petitioner is ordered to prepare and submit tó the Commissioner of Education a plan for the implementation of the Commissioner’s order of June 13,1968, providing, among other things, 1 ‘ for full integration in grades one through six by assigning all pupils in grades one through three to existing elementary schools in either the north or south half of the district, and all pupils in grades four through six to schools in the other half of the district ’ ’ and requesting information concerning funding available, such plan to be submitted to the Commissioner of Education within 30 days after service of a copy of the order to be entered hereunder upon petitioner with notice of entry.

The Commissioner, within 30 days after submission of such plan, shall advise the petitioner of the amounts of aid available. Either party may then renotice the proceeding for a hearing on the petition.