Opinion
June 12, 1967
Judgment of the Supreme Court, Kings County, dated January 10, 1966, reversed on the law, without costs; respondents' determination dismissing petitioner's appeal is annulled; and respondents are directed (1) to furnish petitioner with the standard answers and rating directions applicable to the essay-type parts of her examination and (2) to afford petitioner a reasonable time to prepare and file an appeal, if she be so advised, from such parts of the examination. No questions of fact have been considered. In our opinion, the refusal of respondents to permit petitioner to examine the standard against which her performance was measured was unreasonable and substantially impaired her right of appeal. The results of the examination should be so stated that the applicant can "check up the conclusions by some objective comparison" ( Matter of Andresen v. Rice, 277 N.Y. 271, 282). In Matter of Gassner v. Board of Examiners of City of N.Y. ( 27 A.D.2d 662, revg. 51 Misc.2d 467), this court held that the petitioner had a right to inspect the rating schedule upon which her training and experience were evaluated, in order to obtain an adequate review of her case. Furnishing a prospective applicant with photocopies of his examination papers and a rating sheet does not, in our opinion, provide him with a sufficient explanation for his failing grade. It compels him to challenge a standard he has never seen or forego his right of review. We think that is an unreasonable choice to impose. Respondents argue that the procedure of not furnishing standard answers has been followed for many years and that thousands of applicants have been able to prepare and file appeals; that of the hundreds of such appeals filed each year approximately 15% of the appellants are successful; and that, if standard answers were furnished to prospective appellants, these answers would be improperly applied and endless litigation would result. We do not find these arguments persuasive. If a procedure is unreasonable, it does not become less arbitrary with age. The fact that some applicants have managed successfully to overcome a handicap that should not have been imposed is no argument for continuity of that handicap. Nor does it necessarily follow that furnishing the standard answers will result in substantially increased litigation. Faced with the excellence of the stand-and against which his performance was measured, a prospective applicant can see the deficiencies of his answers and weigh intelligently the probability of success on an appeal. Under the present procedure, he is confronted with an unknown standard answer which must be challenged in "scatter-gun" fashion because he must argue against every conceivable answer save his own. The maintenance of secret standards does not inspire confidence in the objectivity and fairness of these examinations. If increased appeals and litigation should be the result of furnishing these answers, the board and the courts must be prepared to accept those burdens. Christ, Acting P.J., Rabin, Benjamin, Munder and Nolan, JJ., concur. [ 48 Misc.2d 792.]