Order reversed, without costs, and the petition dismissed in the following memorandum: The Commissioner of Education, assuming that section 6401 of the Education Law does not offend against constitutional limitations — a question on which we do not pass — denied petitioner's application. In our view, the Commissioner had reasonable basis for his determination. (See Matter of Older v. Board of Educ., 27 N.Y.2d 333, 337; Matter of County of Cayuga v. McHugh, 4 N.Y.2d 609, 613.) The Commissioner has, however, invited the submission of a "new" application if the petitioner believes that, "as a result of any further development", it has become an eligible institution.
Concur: Chief Judge FULD and Judges BERGAN, BREITEL, JASEN and GIBSON. Judges BURKE and SCILEPPI dissent and vote to affirm on the opinion at the Appellate Division.