Gassner v. Board of Examiners

29 A.D.2d 768, 287 N.Y.S.2d 773, 1968 N.Y. App. Div. LEXIS 4700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1968
• Status: Published

Opinion

Appeal from so much of a judgment of the Supreme Court, Kings County, dated June 19, 1967, as denied petitioner’s application and dismissed the petition. Judgment reversed insofar as appealed from, on the law, without costs, and proceeding remitted to the Special Term for the purpose of enabling petitioner and respondent to submit oral and written arguments concerning the legality of the standards used by respondent in its rating of petitioner’s training and experience, No questions of fact were considered on this appeal. The order of this court entered upon petitioner’s prior appeal herein (Matter of Gassner v. Board of Examiners of City of N. Y., 27 A D 2d 662) did not direct the holding of a trial with respect to the o'bjecjeetivity of the standards used by respondent in rating petitioner’s training and experience. Not having had respondent’s rating schedule before us, we could not have said that an issue of fact existed with respect to the standards contained in the schedule. Hence, upon the remission of this proceeding to the Special Term on the prior appeal, it was error for petitioner to move for the fixing of a date for a trial of the above issue. However, it was error for the Special Term, in denying petitioner’s motion, to dismiss the petition herein, relief for which respondent had not cross moved (CPLR 2215; Lowenkron v. Berkeley Coop. Towers Sea. 11 Corp., 25 A D 2d 656). By so doing the Special Term deprived petitioner of an opportunity to advance her arguments against the legality of respondent’s rating schedule. Christ, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.