Opinion
October 9, 1980
Appeal from a judgment of the Supreme Court at Special Term, entered August 28, 1979 in Albany County, which dismissed a proceeding, brought pursuant to CPLR article 78, to review a determination of the State Board for Ophthalmic Dispensing which refused to sustain petitioner's challenges to two questions on the June, 1978 licensing examination. The petitioner sought to compel the respondents to accept his answers to two particular multiple choice questions on a licensing examination. The appropriate standard was stated by Special Term, as follows: "In determining the rationality of the Board's determination, the court is mindful that the petitioner does not have to show that there is no reasonable basis for the Board's answer but merely has to show that his answers are better or at least as good ([Matter of] Acosta v. Lang, 13 N.Y.2d [1079])." While the petitioner did raise some question in his papers as to the correct answers, the affidavit submitted on behalf of respondents as to the correctness of the answers selected establishes that petitioner failed to carry his burden of proof. There was nothing to indicate that a hearing would be of any practical assistance to Special Term and, accordingly, the assertion of petitioner that a hearing should have been held is erroneous (see Matter of O'Brien v. Commissioner of Educ. of State of N.Y., 3 A.D.2d 321, 325). Judgment affirmed, without costs. Mahoney, P.J., Greenblott, Sweeney, Kane and Herlihy, JJ., concur.