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MATTER FRANKLIN HOLLOWAY v. BOARD EXAMINERS BOARD EDUCATION CITY NEW YORK (06/30/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 30, 1969

IN THE MATTER OF FRANKLIN HOLLOWAY, APPELLANT,
v.
BOARD OF EXAMINERS OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, RESPONDENT

In a proceeding pursuant to article 78 of the CPLR (1) to compel respondent to give petitioner a copy of certain reports which were the bases for rating him unsatisfactory in an examination for a license as Supervisor of School Social Workers and (2) for other relief, the appeal is from a judgment of the Supreme Court, Kings County, entered November 3, 1967, which dismissed the petition.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

Petitioner is a school social worker. The reports, of which he seeks copies, are the medical report and any other reports used in rating him unsatisfactory in the physical and medical test part of the examination for a license as Supervisor of School Social Workers. Petitioner claims that resort to the reports is necessary in order that he may effectively exercise his right to an administrative appeal pursuant to respondent's by-laws. Special Term dismissed the petition on the authority of Matter of Kropf v. Board of Educ. (18 A.D.2d 919) and Matter of Frank v. Board of Educ. (19 A.D.2d 741). In our opinion, Kropf and Franck are distinguishable from the proceeding at bar, for they represent instances of premature applications for inspections of past medical reports prior to the holding of future examinations of the petitioners, whereas the proceeding before us falls within the reasoning of Matter of Schwartz v. Bogen (21 N.Y.2d 1020), compelling the granting of the petition.

Disposition

 Judgment reversed, on the law, with $10 costs and disbursements, and petition granted to the extent that respondent is directed to furnish a copy of each report to a physician designated by petitioner, and not to petitioner personally; and the proceeding is remanded to the Special Term for further proceedings not inconsistent herewith, including determination of the question of allowance of time to petitioner to appeal from the unsatisfactory rating and the entry of an appropriate new judgment. No questions of fact have been considered.

19690630

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