Barry v. Department of Personnel, Civil Service Commission

49 A.D.2d 722, 373 N.Y.S.2d 138, 1975 N.Y. App. Div. LEXIS 10658

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 1975
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered on March 13, 1973, dismissing this article 78 proceeding, unanimously modified, on the law, to the extent of granting the application insofar as it relates to petitioner Mittelman’s protest of the proposed key answer to Question 25. In all other respects the judgment appealed from is affirmed, without costs and without disbursements. It is conceded that all of the petitioners, save Mittelman, failed to file timely protests, as required by the instructions contained in the examination booklets utilized. Each of the petitioners was made aware of the protest procedure to be followed by the explicit instructions contained in the booklets and, under the facts in this record, could "reasonably have been expected to read the directions for protesting answers”. (Matter of O’Neill v Schechter, 5 NY2d 548, 556.) Petitioner Mittelman did timely protest and, as to him, we, are convinced that his answer to Question 25 is, as a matter of law, "better or at least as good as the key answer”. (Matter of Acosta v Lang, 13 NY2d 1079,1081.) (See O. W. Wilson, "Police Administration”, [2d ed], p 246; O. W. Wilson, "Municipal Police Administration” [1969 ed], p 86, which authority was relied upon by petitioners and the test validation board itself.) Concur—Stevens, P. J., Markewich, Kupferman, Capozzoli and Nunez, JJ.