Horowitz v. Roche

— Judgment, Supreme Court, New York County, entered July 28, 1978, denying and dismissing petitioner’s petition which sought a direction compelling respondents to appoint him a Senior Appraiser (Real Estate) in the Department of Housing Preservation and Development of the City of New York, unanimously reversed, on the law, without costs and disbursements, and the application is granted to the extent of remanding this matter to the Housing Preservation Administration for a hearing. The petitioner, an appraiser in the real estate department of the Housing Preservation Administration of the City of New York, took a civil service examination for the position of Senior Appraiser and was the only one who passed. His name was certified by the Department of Personnel to the Housing Agency, but the latter did not appoint petitioner to the position of Senior Appraiser. Instead, the Housing Preservation Administration, with respect to petitioner, obtained an exemption from an executive order which mandated civil service appointments. It rebuffed petitioner’s attempt to secure appointment with the reasons that provisionals were performing the duties of that office and that petitioner’s performance with respect to the skill required by that position is marginal, i.e., that petitioner was not competent to perform the work demanded by the position of Senior Ap 855 praiser. Petitioner asserts that two individuals who took the examination, but did not pass, were appointed Senior Appraiser provisionals. The record discloses that the respondents’ contention that petitioner is not competent is rebutted by evidence submitted by petitioner to the effect that he is able, thus raising a clear factual issue. The reason for nonappointment being essentially predicated on lack of competence, despite the fact that petitioner was the only one who passed the examination, carries with it an implied stigma that affects the petitioner’s freedom within the ambit of the Fourteenth Amendment, and this warrants affording to petitioner a hearing in accord with due process, i.e., the affording to petitioner of notice and an opportunity to be heard in refutation of the charge of incompetence (cf. Board of Regents v Roth, 408 US 564; Perry v Sindermann, 408 US 593; Matter of Delicati v Schechter, 3 AD2d 19, 23). Concur—Sullivan, Lane, Lupiano and Ross, JJ.