Opinion
Argued October 9, 1973
Decided October 23, 1973
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department.
Lauren D. Rachlin and Michael B. Berger for appellant.
Anthony Manguso, Corporation Counsel ( Anthony Gregory of counsel), for respondent.
Order reversed, without costs, and the matter remitted to Special Term for further proceedings in accordance with the following memorandum: As stated by the dissenters at the Appellate Division, the findings and recommendations of the "arbitrator" were entitled to consideration by the Commissioner even if not entitled to the weight assigned by the law to an arbitrator's award, and should not have been ignored by the Commissioner as he apparently did when he made his determination (see Matter of Kelly v. Murphy, 20 N.Y.2d 205). Accordingly, the matter should be remitted to Special Term with directions to remand the matter to the Commissioner for reconsideration in the course of which appropriate weight shall be given the findings and recommendations of the arbitrator.
Concur: Chief Judge FULD and Judges BURKE, BREITEL, JASEN, JONES and WACHTLER. Taking no part: Judge GABRIELLI.