Oback v. Nadel

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Petitioners brought the present article 78 proceeding to challenge the validity and correctness of certain answers on an examination given for promotion to the position of sergeant of the New York City Transit Police Department. Supreme Court determined that the petition should not be dismissed because the challenge to the answers could not be decided without a hearing. The Appellate Division then affirmed and granted leave to appeal to our court.

We agree with the courts below that factual issues remain for determination following a hearing. There is no merit to respondents’ contention that the proper standard for review is whether there is a rational basis for the answers designated by the administrators as correct and that the case can be decided on the basis of the papers submitted. As we noted in Matter of Acosta v Lang (13 NY2d 1079, 1081), the challengers to these answers are “not required to show that there is no reasonable basis for the key answer selected by the commission, but merely that the answer given by the candidate on the test is better or at least as good as the key answer.” Significantly, the court reasoned that “[w]here there are two equally acceptable answers to a question, the selection of one as the correct answer must be deemed to be the result of an arbitrary decision” (supra, at p 1081 [citations omitted]). We simply add that the challengers will face the burden of proving the noncredited answers correct at the subsequent hearing. The extensive administrative review procedure employed by respondents in the face of the challenges to the designated answers warrants that the final administrative determinations regarding these answers enjoy a presumption of correctness which must be overcome by the challengers.