Breheny v. Roche

81 A.D.2d 772, 438 N.Y.S.2d 803, 1981 N.Y. App. Div. LEXIS 11411

Opinions

— Judgment, Supreme Court, New York County, entered October 17, 1979, affirmed, without costs, on the opinion of Justice Stecher at Special Term. Certain observations in addition are necessitated by what is said by our dissenting brother who, in effect conceding the applicability hereto of “Matter of Lee v Roche, (78 AD2d 288)”, regards the issue here as “one of essential fairness.” Petitioners-appellants disposed procedurally of the question of propriety of the challenged answers by entering into a stipulation, freely and voluntarily, to refer that issue to a test validation board for resolution. Contrary to the implications in the dissent, the board departed not one iota from the written agreement in any particular whatever. Having charted their course and followed it, petitioners cannot be now heard to complain. Concur — Sandler, Sullivan, Ross and Markewich, JJ.