McGowan v. Burstein

Mahoney, P. J. (dissenting).

Defendants appeal from an order of Supreme Court which denied the parties’ motions for summary judgment and granted plaintiff’s alternative request for a preliminary injunction. Initiallly, we are of the view that the record presents no triable issues of fact such that summary judgment should have been granted to one of the parties.

Plaintiffs’ action does not challenge zone scoring as applied in a particular situation, but seeks a declaration that zone scoring is, per se, violative of the NY Constitution and the regulations of the Department of Civil Service. The applicable constitutional provision reads, in pertinent part: "Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive” (NY Const, art V, § 6).

The Court of Appeals has held that this provision does not require that examination scores be the sole determinant of fitness and has upheld Civil Service Law § 61 (1) which authorizes the appointment of any one of three persons with the highest standing on the eligibility list (see, Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526). Plaintiffs claim that the concept of zone scoring violates this provision, without regard to the specific manner in which zone scoring is applied to a particular test. It is apparent that there are circumstances where, based on the mechanics employed, zone scoring would not violate the requirement that examinations be competitive "as far as practicable”. Thus, plaintiffs’ per se challenge to zone scoring must fail. Supreme Court properly recognized that zone scoring could be abused. If plaintiffs believe that zone scoring as applied to a particular test violates the NY Constitution, a challenge to the methodology applied to that examination would be appropriate.

In conclusion, we would grant defendants’ motion for summary judgment and make a declaration in their favor.

Weiss and Harvey, JJ., concur with Yesawich, Jr., J.; Mahoney, P. J., and Levine, J., dissent in an opinion by Mahoney, P. J.

Order modified, on the law, without costs, by reversing so much thereof as denied plaintiffs’ motion for summary judgment and granted their alternative request for a preliminary injunction; summary judgment awarded to plaintiffs and it is declared that defendants’ use of the zone scoring technique on competitive civil service examinations is violative of NY Constitution, article V, § 6 and 4 NYCRR 67.1 (b) and (c), and that defendants are prohibited from using said technique unless authorized to do so by prior court order; and, as so modified, affirmed.