The opinion
Munder, J. (concurring in the result).
I agree with the observation in the opinion by Mr. Justice Shapiro that the statutory scheme for the ordering of special educational services for a handicapped child through the Family Court and the allocation of the costs of those services “ is, at best, cumbersome, and at worst, unclear and unnecessarily complex.” I also conclude that in this case there probably was enough proof of the parents’ indigency to excuse them from contributing toward the cost of the court-ordered services.
I cannot subscribe, however, to the reasoning that approval of the Family Court order by the Commissioner of Education, without objection, makes the issue “ moot ” as far as Westchester County is concerned. That would mean in every case involving subdivision 1 of section 4403 of the Education Law the county would be precluded from raising the issue of parental contribution unless it were raised by the Commissioner of Education. It is true, as noted by my colleague, that nothing in subdivision 1 of section 4403 makes parental contribution mandatory. But that is so because each case presents a different financial picture. Parental contribution should depend on the ability to pay and not whether the Commissioner objects.
Rabin, P. J., Hopkins and Latham, JJ., concur with Shapiro, J.; Munder, J., concurs in result, with a separate opinion.
Order modified, on the law, so as to add thereto a provision that, while the costs shall be paid in the first instance by the *45 County of Westchester, said county shall he reimbursed to the extent of one half of its payments hy the State of New York. As so modified, order affirmed insofar as appealed from, without costs.