Carbonaro v. Bahou
| Decision Date | 26 January 1982 |
| Citation | 112 Misc.2d 311,447 N.Y.S.2d 114 |
| Parties | Carl CARBONARO, Anne J. Francese and Ricardo Suarez, Petitioners, v. Victor BAHOU, Josephine Gambino and James McFarland, as members constituting the New York State Civil Service Commission, and New York State Department of Civil Service, Respondents. For a Judgment Pursuant to Article 78 of the CPLR. |
| Court | New York Supreme Court |
In an attempt to fulfill New York State's requirement for "Associate Personnel Administrator"(s) respondent Victor Bahou, as head of the New York State Department of Civil Service, announced and conducted the written portion of two separate examinations. One of these (promotion examination) was intended solely for those already employed by New York State in related positions, while the other (open-competitive examination) was closed to those who were eligible to take the promotion examination.
Petitioners, all State employees who took the promotion examination, allege that the open-competitive examination should be declared invalid for the reasons that 1) it was an unfair examination, because there was an extreme and unaccountable variation in the context of the two written tests which made the open-competitive examination easier; 2) those qualified to take the promotion examination were precluded from taking the open-competitive examination; and 3) the open competitive examination did not test the candidate on the very skills and knowledge that will be required of Associate Personnel Administrators.
Respondents move, pursuant to CPLR 7801(1), to dismiss the petition alleging that the petitioners have failed to exhaust their administrative remedies. Civil Service Law § 6 subd. (5) provides for appeals to the commission, except in cases where the questioned action or determination relates solely to matters of internal management of the department or was considered and approved in advance by the commission.
Petitioners' attack cannot be considered to be against an action or determination which relates solely to matters of internal management of the department (Kirk v. Bahou, 73 A.D.2d 770, 423 N.Y.S.2d 540, affd. 51 N.Y.2d 867, 433 N.Y.S.2d 1019, 414 N.E.2d 399), nor can it be considered to have been considered and approved in advance by the commission. Petitioners submit a letter of Victor S. Bahou, President of the...
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Carbonaro v. Bahou
...their administrative remedies. Finding respondents' argument persuasive, the court ultimately granted their motion to dismiss, 112 Misc.2d 311, 447 N.Y.S.2d 114, and the present appeal We hold that the challenged judgment should be affirmed. Nothing in the record indicates that petitioners ......