The opinion
Kupferman, J. P. (concurring).
While I am in accord with the dissenting opinion, in view of the Court of Appeals determinations, such as Matter of Organization to Assure Servs. v Ambach ( 56 NY2d 518 ), Matter of O'Rourke v Kirby ( 54 NY2d 8 ), and Matter of Pell v Board of Educ. ( 34 NY2d 222 , 231) that administrative determinations must be accorded comity where there is a rational basis for it, I reluctantly concur in the majority opinion.
*204 To suggest that a plumber is qualified to dig a hole but not qualified to fill it. up is tantamount to writing the introduction to a new version of Lewis Carroll’s Alice in Wonderland.
For a city agency, which admittedly cannot cope with the 750,000 potholes and street and sidewalk defects (see NYLJ, March 17,1982, p 1, cols 2-3; see Big Apple Pothole & Sidewalk Protection Committee v Ameruso, 86 AD2d 986 ), to insist that it must make the determination as to who fills a “cut” in the street and that it cannot be a licensed plumber, is ludicrous. At best, it is the pot calling the kettle black and, at worst, it imposes, an expensive burden on the people arranging for the “cut” in the street, which cost may well be passed on to the taxpayers of the City on whose behalf, theoretically, the respondents act.