Kurtz v. Krone

22 A.D.2d 988, 254 N.Y.S.2d 645, 1964 N.Y. App. Div. LEXIS 2505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1964
• Status: Published

Opinion

Per Curiam.

Petitioners appeal from a judgment of the Supreme Court dismissing the petition in an article 78 CPLR proceeding to compel respondents to grant credit for answers to questions numbered 78, 79 and 80 on a competitive promotional examination for the position of Deputy Clerk, Supreme Court, First Judicial Department, or, in the alternative, to eliminate such questions from the examination, contending that their answers were at least as acceptable as the key answers selected by respondents. Respondents failed to file with their answer a certified transcript of the record of the proceedings under review but submitted to Special Term for its private inspection the questions and answers and other material pertinent to their determination, the content of which was not made available to petitioners. Special Term should have required the omission to be supplied. (CPLR 7804, subd. [e]; Matter of Occhino v. Hostetter, 21 A D 2d 744.) A declaration that they would not copy any question or answer or divulge the subject matter thereof executed by appellants in connection with the examinatorial process cannot be construed as a waiver of their right to review the determination of the commission upon a record constituted as the statute prescribes. Judgment reversed, on the law and the facts, and the matter remitted to Special Term for further proceedings, with $75 costs; respondents are directed to serve a new and proper answer within 20 days after service of a copy of the order to be entered hereon with notice of entry. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur. [43 Misc 2d 573.]