Hammerl v. Mavis , 341 N.Y.S.2d 842 ( 1973 )

Per Curiam.

This is an article 78 proceeding against the Commissioner of the Department of Public Works. Petitioner was denied a license as a master electrician. As the proceeding was based on an administrative hearing and questioned the interpretation of evidence, the matter should have been transferred to this court (CPLR 7804, subd. [g]), However, we can and do obviate that error by considering the matter on the record as if it had been transferred (Matter of D. H. K. Rest v. New York State Liq. Auth., 31 A D 2d 525). The petitioner passed the written examination and the field test. Respondent based his refusal to issue the license on the ground that petitioner did not have “at least seven and one-half (7%) years of experience in the installation, alteration and repair of wiring and appliances for Electric Light, Heat and Power as a journeyman Electrician.” Coneededly the period of seven and a half years is an error, as petitioner with his scholasitic credit was only required to have five and a half years of experience. But this error is inconsequential. Actually, petitioner had 14 years experience as a journeyman, and respondent’s decision was based on the kind of work petitioner performed rather than on the period he was engaged in it. All of petitioner’s experience was gained in working for Mainco. This company appeared to do a substantial business in electrical maintenance and repair, especially in elevators. However, petitioner did not work in this department but in one that did general industrial work. This included the installation and wiring of all manner of electrical appliances. The company did not, however, contract to install and wire newly constructed buildings, and it is apparent from the record of the hearings that this was the ground on which the application was faulted, and also the ground upon which the respondent’s decision is sought to be sustained on this application. In so doing we believe the respondent went beyond and outside the requirements of the Administrative Code (ch. 30). While experience in installation is a requirement, nothing in the code specifies that that experience must be in new buildings. Of course an installation would mean a new wiring, and that petitioner did this was proved without contradiction. We agree that responsibility for licensing is placed on respondent, and his is the expertise. His conclusions should therefore not be lightly disturbed. However, the standards are set not by him but by statute, and when he goes beyond that standard his action is arbitrary. Judgment entered August 23, 1972, New York County is vacated and, pursuant to CPLR 7804 (subd. [g]), this court treats the matter as if transferred to it in the first instance and annuls the determination of the respondent on the law, without costs, and grants the petition.