Opinion
December 17, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Mahoney, Dillon, Goldman and Witmer, JJ.
Judgment unanimously reversed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: This is an appeal from a judgment of Supreme Court, Erie County, dismissing appellant's article 78 petition. The petition sought review of determinations of the Municipal Civil Service Commission of the City of Buffalo (the Commission), made with respect to an examination given for the position of assistant housing manager. In his petition appellant demanded judgment against the Commission, requiring it to accept his answers to certain of the multiple choice type questions on the examination or, in the alternative, to accept more than one answer to such questions as correct. Appellant also sought deletion of questions 4, 5, 21, 22 and 90 as not being "reasonably related to the position of Assistant Housing Manager". The judgment of Special Term is reversed and the matter remitted for development of a proper evidentiary record. On remittal, the Commission is directed to file with their answer the disputed questions and answers for the examination (Matter of Kurtz v Krone, 22 A.D.2d 988), including the examination instructions and all other papers "material" and "evidentiary" relative to the examination and decision of the Municipal Civil Service Commission of the City of Buffalo which are the subjects of this proceeding (CPLR 7804, subds [d], [e]). Such authority is vested in Special Term (Matter of Occhino v Hostetter, 21 A.D.2d 744). Though a court may not set aside an administrative action simply because it might have made a different determination were it empowered to do so (Matter of Meschino v Lowery, 34 A.D.2d 255), the agency must demonstrate to the court the existence of a rational basis for its determination (Matter of McPartland v McCoy, 35 A.D.2d 641). On this record the Commission's answer did not present an adequate basis to demonstrate the rationality of its deletion of certain questions. Nor did the Commission make any showing demonstrating that certain questions were reasonably related to the position of assistant housing manager. There existed, therefore, no adequate record upon which Special Term could make its determination (see Matter of Barry v O'Connell, 303 N.Y. 46, 52). On remittal Special Term need not reconsider appellant's contention that the Commission has the power to accept two answers as correct. As Special Term has correctly determined, the Commission may only accept such "alternate" answers if it expressly reserves that right in the examination instructions (Matter of Fernandes v Silverman, 10 A.D.2d 633, affd 9 N.Y.2d 681). Where, as here, the examination instructions call for only the "best" answer to each question, it would be arbitrary and unreasonable for the Commission to deviate from those instructions and accept alternate answers (Matter of Gruner v McNamara, 298 N.Y. 395). The examination instructions constitute the predicate for both the candidate's and the Commission's action (Matter of Blumenthal v Morton, 273 App. Div. 497, 500, affd 298 N.Y. 563). If more than one answer can be deemed "best" to a particular question, that question must be deleted (Matter of Acosta v Lang, 13 N.Y.2d 1079; Matter of Francis v Colucci, 49 A.D.2d 1009).