Opinion
Argued April 30, 1974
Decided June 5, 1974
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, CARROLLTON A. ROBERTS, J.
William J. Stevens, County Attorney ( Michael K. Consedine of counsel), for appellants.
Louis N. Kash for respondent.
MEMORANDUM. The order appealed from should be affirmed, without costs. The fraudulent denial of arrests in the petitioner's application for employment may have constituted a valid ground for denial of employment and therefore for dismissal following a reasonable opportunity for discovery. After the passage of an extended period of time, however, in this instance five years, the ground loses its force. It is immaterial whether one regards the basis for ignoring the original fraud as a waiver, estoppel, or laches. Beyond the reasonable time for discovery of the fraud, petitioner should not have been dismissed unless first there had been a showing, either that there was still a valid basis for disqualification to fill the position because of the arrests, or that he had been guilty of misconduct or incompetence in the performance of his duties.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur in memorandum.
Order affirmed.