The opinion
Mikoll, J. (dissenting).
I respectfully dissent.
There should be a reversal, 8 NYCRR 602.8 (c) (1) (iii) declared null and void and the matter remitted to respondent Board of Trustees of the State University of New York (trustees) for a determination of the amount of State aid due petitioner Westchester Community College. Regulation 8 NYCRR 602.8 (c) (1) (iii) is in violation of the clear meaning of section 6304 (subd 1, pars a, b) of the Education Law and is therefore null and void.
A court will generally “defer to the interpretation given a statute by the agency charged with its enforcement if the interpretation is neither irrational, unreasonable, nor inconsistent with the governing statute” (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 597 ). Notwithstanding: “It is well established that in exercising its rule-making authority an administrative agency cannot extend the meaning of the statutory language to apply to situations not intended to be embraced within the statute * * * Nor may an agency promulgate a rule out of harmony with or inconsistent with the plain meaning of the statutory language” ( 57 NY2d, at p 595 ).
Subdivision 1 of section 6304 of the Education Law clearly states that when a community college has an approved “Full Opportunity Program”, it is entitled to State *136 financial aid equal to two fifths of operating costs (Education Law, § 6304, subd 1, par a). Operating costs are defined in paragraph b of subdivision 1 of section 6304 of the Education Law.
Under paragraph b, operating costs are subject to maximum limitations and regulations as prescribed by respondent trustees with the approval of the State Budget Director. In effect, the trustees determine the maximum operating costs of the college and paragraph a mandates that two fifths of these costs be applied in the calculation of State aid.
Regulation 8 NYCRR 602.8 (c) (1) (iii) employs a formula with little regard to operating costs. The “Ingler formula” determines the total State aid for a college by making clear that 40% of the college’s operating costs eligible for State aid may not exceed a specified amount. This places the calculation of State aid before a determination of operating costs and is in direct conflict with the clear meaning of section 6304 of the Education Law.
The Education Law (§ 6304, subd 1, pars a, b) specifically requires a formula of two fifths of operating costs to determine State aid. While the Ingler formula, in effect, may arrive at a similar result, the trustees are not performing their statutory duty of establishing the operating costs. Nor does employment of the Ingler formula provide a sufficient record for review by a court concerning the trustees’ determination of operating costs. Consequently, use of the Ingler formula is improper.
Finally, petitioners’ request to be granted $1,898,627 in State aid allegedly denied it by use of the Ingler formula must be regarded as premature. Since respondents have not calculated what the maximum limitations of operating costs are or what amount is proper, the matter must be remitted for such a determination.
Sweeney, J. P., Casey and Weiss, JJ., concur with Kane, J.; Mikoll, J., dissents and votes to reverse in a separate opinion.
Judgment affirmed, without costs.