Lombardo, Application of

CourtUnited States State Supreme Court (New York)
Writing for the CourtVINCENT A. LUPIANO
Citation37 Misc.2d 436,235 N.Y.S.2d 1010
Decision Date26 November 1962
PartiesApplication of Josef V. LOMBARDO and Joseph P. Mullally, Petitioners, for an order under Article 78 of the Civil Practice Act, to review determinations of The Board of Higher Education in the City of New York, Respondent.

Page 1010

235 N.Y.S.2d 1010
37 Misc.2d 436
Application of Josef V. LOMBARDO and Joseph P. Mullally,
Petitioners, for an order under Article 78 of the Civil
Practice Act, to review determinations of The Board of
Higher Education in the City of New York, Respondent.
Supreme Court, Special Term, New York County, Part I.
Nov. 26, 1962.

Saxe, Bacon & O'Shea, New York City, for petitioners, Edward D. Burns, New York City, of counsel.

Leo A. Larkin, Corp. Counsel of City of New York, Mathias F. Correa, Sp. Asst. Corp. Counsel, for respondent.

Page 1011

VINCENT A. LUPIANO, Justice.

This is a proceeding under Article 78 of the Civil Practice Act, brought by two Associate Professors at Queens College for an order annulling determinations made by the Board of Higher Education, herein called the respondent, which, in ultimate, refused petitioners promotion to the rank of Professor at the college. Petitioners are Roman Catholics, and they allege that they have been denied such promotion, not because of any lack of quality or promise in their records, but solely because of anti-Catholic bias held by college personnel having the power to recommend and make promotions; and that thereby their constitutionally guaranteed civil rights have been illegally invaded. Petitioners further assert that they have no adequate remedy at law for the review and redress of the wrong done them except through this judicial proceeding.

Respondent rejects the imputation of bias and contends, in the main, that this proceeding is improperly brought in that the determinations of the respondent can be adequately reviewed by appeal to the State Commissioner of Education (Education Law, § 310) . The allegations set forth in the petition, declares [37 Misc.2d 437] respondent, are concerned exclusively with matters of educational competence, qualification and administration, 'all of which matters are particularly within the expertness, authority and jurisdiction of the State Commissioner of Education' (Respt.'s Answer, Par. 19).

Thus, the issue is joined. Were respondent's determinations denying petitioners preferment the result of honest evaluations of the objective criteria of professional qualification and competence exclusively, or were they the tainted fruit of judgments distorted by religious bias? This is a grave issue. Immediately to mind come the repeated pronouncements of this State, constitutional and statutory, deprecating and interdicting discrimination amongst men because of race, creed, color, religion or national origin (e. g., Const., Art. I, § 11; Penal Law, § 700 et seq.; Executive Law, § 290 et seq.). To be noted, also, is the magnitude of the State's concern and involvement with this evil, because such evil 'not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants' (Executive Law, § 290). And to divert for a moment, we may recall the recurring desperate attempts in some quarters to justify such discrimination through theological sophistry or spurious esoteric theories of religious, cultural or ethnic superiority.

It is a matter of public knowledge that in the fall of 1958, following upon the earlier publication of charges of anti-Catholic discrimination in the promotion of members of the instructional staff at Queens College, the State Commission against Discrimination, herein called SCAD, adopted a resolution authorizing the institution of an informal investigation

Page 1012

and study of the charges. SCAD completed its investigation in 1960,...

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2 practice notes
  • Levert v. Gavin
    • United States
    • United States State Supreme Court (New York)
    • June 25, 1963
    ...that may be directly reviewed or adjudicated by this court. Leone v. Hunter, 21 Misc.2d 750, 191 N.Y.S.2d 334; Application of Lombardo, 37 Misc.2d 436, 235 N.Y.S.2d 1010; Prendergast v. Bd. of Educ. of NYC, 192 Misc. 376, 80 N.Y.S.2d 739; Miller v. Gould, 121 Misc. 270, 200 N.Y.S. 884; Made......
  • Lombardo v. Board of Higher Educ. of City of New York
    • United States
    • New York Court of Appeals
    • December 30, 1963
    ...of Appeals of New York. Argued Nov. 18, 1963. Decided Dec. 30, 1963. Affirming order 18 A.D.2d 444, 240 N.Y.S.2d 119, which reversed 37 Misc.2d 436, 235 N.Y.S.2d [13 N.Y.2d 1099] Edward D. Burns, New York City, for appellants. Leo A. Larkin, Corp. Counsel (Mathias F. Correa, New York City, ......
2 cases
  • Levert v. Gavin
    • United States
    • United States State Supreme Court (New York)
    • June 25, 1963
    ...that may be directly reviewed or adjudicated by this court. Leone v. Hunter, 21 Misc.2d 750, 191 N.Y.S.2d 334; Application of Lombardo, 37 Misc.2d 436, 235 N.Y.S.2d 1010; Prendergast v. Bd. of Educ. of NYC, 192 Misc. 376, 80 N.Y.S.2d 739; Miller v. Gould, 121 Misc. 270, 200 N.Y.S. 884; Made......
  • Lombardo v. Board of Higher Educ. of City of New York
    • United States
    • New York Court of Appeals
    • December 30, 1963
    ...of Appeals of New York. Argued Nov. 18, 1963. Decided Dec. 30, 1963. Affirming order 18 A.D.2d 444, 240 N.Y.S.2d 119, which reversed 37 Misc.2d 436, 235 N.Y.S.2d [13 N.Y.2d 1099] Edward D. Burns, New York City, for appellants. Leo A. Larkin, Corp. Counsel (Mathias F. Correa, New York City, ......

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