Opinion
May 18, 1971
Appeal from a judgment of the Supreme Court, Albany County, which denied petitioner's application in a proceeding pursuant to article 78 of the CPLR to annul a determination of the Civil Service Commission setting aside the results of an open competitive examination and revoking several permanent appointments made from the eligible list resulting from that examination and from an order of the same court denying an application for renewal or reargument of the motion for dismissal of the petition. On December 2, 1967 petitioner, as part of a series of open competitive and promotional exams conducted by the New York State Civil Service Commission at 33 test centers throughout the State, took an open competitive examination for the position of Assistant Land and Claims Adjuster in the Department of Conservation. Thereafter the commission announced that petitioner had passed the examination, and he was subsequently appointed from the resulting eligible list to such position. After the examination complaints concerning the administration of the tests were received, and the commission decided that anyone who felt that the examination as administered adversely affected him, would be given the opportunity to be retested in a new comparable examination. For those who did not feel adversely affected the results were allowed to stand. This solution did not satisfy a number of persons who had taken an examination for Right-of-Way Agent in the Department of Transportation, and in a subsequently brought article 78 proceeding they succeeded in having their examination results set aside and the eligible list resulting therefrom expunged ( Going v. Poston). In granting the requested relief the court held that the conceded variations in time allowed in the various test centers made the examinations noncompetitive and thus violated section 6 of article V of the State Constitution and that a comparable examination could not cure the defects which made the original examinations noncompetitive. Following this decision the commission decided to declare null and void all of the examinations taken on December 2, 1967, with the exception of certain tests for county government positions which it found not to have been affected by any test irregularities and to announce a new series of examinations. The instant proceeding was brought to challenge this decision. The mere fact that the commission placed petitioner on the eligible list and that he was subsequently appointed therefrom does not preclude the revocation of the list and the resultant appointment where the basis for the establishing of the list was illegal ( People ex rel. Finnegan v. McBride, 226 N.Y. 252, 257). And if the test were noncompetitive the use of its results would, of course, be not only illegal but unconstitutional. Moreover, the issue of the competitiveness of an examination is basically an issue for the commission in the exercise of its administrative discretion ( Matter of Katz v. Hoberman, 28 N.Y.2d 530). The instant record, however, reveals no basis for the commission's finding of a lack of competitiveness with respect to this examination and, accordingly, its determination must be annulled. First, there is absolutely no indication, unlike in the examination involved in Going v. Poston ( supra), that any of 21 candidates who took the instant examination utilized more than 4 1/2 hours. An uncontested affidavit by Henry F. Gannon, Superintendent of Land Acquisition in the Department of Conservation, indicates that 18 of the 21 candidates took 4 1/2 hours or less. And as to the remaining three candidates there is no indication that they took more than 4 1/2 hours, and in any event since these three did not pass the examination, how much time they actually took is immaterial in that it produced no prejudice. Additionally, there is no indication that there were any complaints with respect to this examination, other than indirectly in that seven participants, six who failed and one who passed, decided to retake the exam when that alternative was made available to them. And concededly time irregularities in other examinations would not affect this examination any more than the four local county examinations which the commission left undisturbed. We thus find no basis whatsoever for the commission's decision to vacate the results of the examination in question. Judgment and order reversed, on the law and the facts, and the decision of the Civil Service Commission annulled, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Sweeney and Simons, JJ., concur.