Opinion
May 1, 1967
Judgment of the Supreme Court, Kings County, dated May 13, 1965, which (1) annulled the respondent board's resolution denying petitioner's appeal from a rating of "Unsatisfactory" in an inspection test held on June 18, 1962 for a license as Director of Health Education and (2) directed the board to grant petitioner's said appeal and to grant petitioner a continued inspection test, reversed, on the law, without costs, and proceeding remitted to the Special Term for the purpose of determining the issues on the merits. The ground of the Special Term's determination was that the examining panel was not legally constituted at the time petitioner took his inspection test. In our opinion, the former provision in the respondent board's by-law 19.2 that "No person shall be employed as assistant examiner unless he has been approved as such by the Board of Examiners and by the Municipal Civil Service Commission of the City of New York" became obsolete, insofar as it required approval by said commission, upon the amendment of subdivision 10 of section 2573 Educ. of the Education Law (L. 1961, ch. 754, enacted April 22, 1961, eff. July 1, 1961) and the exchange of letters in May and June, 1961 between the board and the commission purporting to eliminate the requirement for approval by the commission (cf. Matter of Nelson v. Board of Examiners, 27 A.D.2d 569). The mere fact that the board's said by-law was not repealed prior to the time that petitioner was rated as unsatisfactory in the inspection test did not impose upon the commission a requirement that it approve the employment of assistant examiners before the assistant examiners could be so employed. Ughetta, Acting P.J., Brennan, Rabin, Benjamin and Munder, JJ., concur. [ 45 Misc.2d 967.]