Martin v. Ronan — 47 N.Y.2d 486

Majority

p. 486

In the Matter of Harold W. Martin et al., Respondents, v William J. Ronan, as Chairman of the Manhattan and Bronx Surface Transit Operating Authority, et al., Respondents, and Leon J. Robinson et al., Intervenors-Appellants.

Argued May 29, 1979;

decided July 3, 1979

p. 487

POINTS OF COUNSEL

Jerome Tauber and I. Philip Sipser for Leon J. Robinson and others, intervenors-appellants.

I. A public employee may not have an appointment vacated as the result of a challenge to the fairness of a promotional examination if he was not made a party to the proceeding in which the examination was set aside. (Kirkland v Board of Educ., 49 AD2d 693 ; Matter of Kelleher v Poston, 33 AD2d 535 ; Matter of Skliar v Board of

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Educ., 45 AD2d 1012 ; Matter of Dreyfuss v Board of Educ., 42 AD2d 845 ; Matter of Crystal v Board of Educ., 87 Misc 2d 632 ; Matter of Cichy v Town of Cheektowaga, 61 Misc 2d 88 ; Matter of Butler v Hayduk, 37 NY2d 497 ; Matter of Greenspan v O’Rourke, 27 NY2d 846 ; Matter of Cappellazzi v Toto, 59 AD2d 599 , 41 NY2d 1050 ; Matter of Biscone v Scaringe, 59 AD2d 794 , 42 NY2d 1075 .) II. Intervenors’ appointments may not be vacated without specific findings of fact that intervenors were advantaged by any alleged unfairness in the conduct of the oral examination. (Matter of Bruns v Suffolk County Civ. Serv. Comm., 56 Misc 2d 925 ; Matter of Mitchell v Poston, 41 AD2d 886 ; Matter of Schulman v Department of Civ. Serv. of State of N. Y., 82 Misc 2d 1084 .) III. The oral examination was fair and competitive. (Matter of Booker v Reavy, 281 NY 318 ; People ex rel. Moriarty v Creelman, 206 NY 570 ; Matter of Metzger v Nassau County Civ. Serv. Comm., 54 AD2d 565 ; Mills v Bahou, 55 AD2d 57 ; Matter of Maurizio v Hoberman, 39 AD2d 524 ; Matter of Objectant No. 37801 v New York State Dept. of Civ. Serv., 33 AD2d 811 ; Matter of Bobrowich v Poston, 52 AD2d 976 ; Matter of Cowan v Reavy, 283 NY 232 ; Matter of Sloat v Board of Examiners of Bd. of Educ., 274 NY 367 .)

Conrad J. Lynn for Robert Fletcher, intervenor-appellant.

I. The intervenor is a necessary party. (Kirkland v Board of Educ., 49 AD2d 693 ; Board of Regents v Roth, 408 US 564 .) II. The court was required to make intervenors parties to the action. (Challette, Inc. v Town of Brookhaven, 43 Misc 2d 264 .) III. Intervenor has been deprived of his property right without due process of law. (Adelman v Adelman, 58 Misc 2d 803 .)

Ronald H. Shechtman and Murray A. Gordon for Harold W. Martin and others, petitioners-respondents.

I. Special Term properly denied intervenors’ motion to renew, reargue and vacate. (Matter of Lezette v Board of Educ., 35 NY2d 272 ; Matter of Skliar v Board of Educ., 45 AD2d 1012 ; Kirkland v Board of Educ., 49 AD2d 693 ; Matter of Dreyfuss v Board of Educ., 42 AD2d 845 ; Matter of Crystal v Board of Educ., 87 Misc 2d 632 ; Matter of Spinney Hill Collision v Caso, 56 AD2d 655 ; Kirkland v New York State Dept. of Correctional Servs., 520 F2d 420 ; Aquavella v Harvey, 40 AD2d 940 ; Schroeder v City of New York, 371 US 208 ; Mullane v Central Hanover Trust Co., 339 US 306 .) II. Special Term properly ruled that the examination was unfair and noncompetitive and that no

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candidate obtained any vested rights therefrom. (Matter of Cohen v Fields, 298 NY 235 ; Matter of Nelson v Board of Examiners of Bd. of Educ., 21 NY2d 408 ; Matter of Meyer v Kaplan, 22 AD2d 449 , 16 NY2d 693 ; Matter of Abo v Krone, 55 Misc 2d 884 ; Matter of Bucalo v Kaplan, 19 AD2d 478 ; Matter of Donohue v Cornelius, 45 Misc 2d 42 , 22 AD2d 1000 ; Matter of Fitzgerald v Conway, 195 Misc 397 , 275 App Div 205 ; Matter of Katz v Hoberman, 28 NY2d 530 , 970; Matter of Elliott v Hoberman, 61 Misc 2d 411 .) III. The relief afforded by judgment of Special Term is appropriate and should be affirmed. (Duquin v Colucci, 60 AD2d 995 ; Matter of Marcus v Kaplan, 20 AD2d 841 ; Matter of Damino v County of Nassau, 56 AD2d 930 , 42 NY2d 823 ; Matter of Cash v Bates, 301 NY 258 .)

OPINION OF THE COURT

In this appeal, intervenor-appellants, 21 incumbents who successfully competed for and were promoted to the position of senior dispatcher by the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) in July, 1973, seek to intervene and vacate a judgment which had annulled the results of the competitive examination on which their appointments were based.

In instituting this article 78 proceeding against MABSTOA to challenge the promotional examination, petitioner-respondents, unsuccessful candidates, sought to vacate the appointments made in reliance thereon chiefly on the grounds that the oral portion of the test was not fair and competitive.^[1] The claim of unfairness had two main prongs. One was that an oral examination was administered to separate groups of candidates on two successive weekends between which some of the questions became available to those who were to be interrogated at the second session, thus unfairly advantaging the latter group. The second was that the grading was not governed by objective standards. At the commencement of the proceeding, appellants were not named as parties and, al

1 MABSTOA, a public benefit corporation and a subsidiary of the New York City Transit Authority, was organized pursuant to section 1203-a of the Public Authorities Law, which specifically provides that its employees shall not acquire civil service status (§ 1203, subd 3, par b). However, MABSTOA is bound by its own rules and regulations, which independently provide for appointment and promotion pursuant to fair and competitive examinations.

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though it appears that some of them had notice of its pendency through informal channels, none were ever formally notified that the outcome of the suit could render their appointments forfeit.

Special Term, in large measure adopting the recommendations of a Special Referee it had appointed to hear and report, found the test unfair. Accordingly, on August 5, 1976, the court vacated and annulled the eligibility list and ordered MABSTOA to conduct a new competitive examination. At this point, the incumbents moved Special Term for an order permitting them, in effect, to intervene in the proceedings, to vacate the judgment and, upon such vacatur, to participate on the merits. The court, while permitting intervention, did so only to the extent of allowing appellants to participate in the appeal from the judgment; it otherwise denied the motion. The Appellate Division affirmed the August 5 judgment and dismissed as academic the appeal from the order limiting the motion to intervene. For the reasons that follow, we believe the relief for which the appellants moved should have been granted in toto.^[2]

We begin by noting that, while our intervention and joinder practice is now delineated by statutes of relatively recent origin (see Twelfth Ann Report of NY Judicial Council, 1946, pp 218-232; 2 Weinstein-Korn-Miller, NY Civ Prac, par 1001.01), even before the turn of the last century our court fully recognized that the fundamental purpose of these devices was not merely to provide, a procedural convenience but to implement a requisite of due process — the opportunity to be heard before one’s rights or interests are adversely affected (see First Nat. Bank v Shuler, 153 NY 163 , 170; see, also, Mullane v Central Hanover Trust Co., 339 US 306 , 314).

It is to serve both these ends that CPLR 1001 contemplates joinder of "Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action” (cf. CPLR 1012, subd [a], par 2). The appellants here fall clearly within the compass of this provision.

As the history of this rather prolonged litigation demonstrates, the would-be intervenors were adversely affected by their original nonjoinder. The interest they shared in the

2 On a previous appeal, this court held that the article 78 proceeding was timely commenced by petitioners ( 44 NY2d 374 ).

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outcome of the proceeding easily could have transcended that of the named respondent, MABSTOA, who, not illogically, might have viewed itself as no more than a neutral stakeholder. The failure of MABSTOA to have joined in this appeal may be confirmation that that is precisely the self-image it in fact had of its role. Indeed, if MABSTOA, which employed both petitioners and intervenors, does not prevail in this proceeding, the new examination it would be called upon to give would be no more than an action it was bound to undertake periodically in any event.

Moreover, quasi-governmental bodies may be motivated by considerations dehors those relating to the merits of a particular case. For example, such a body may prefer to take the long view and wait to press its claims in a controversy presenting a stronger factual setting and thus avoid an adverse precedent. And, resource constraints and even political considerations may govern the decision whether to litigate and how far. (Cf. Matter of Butler v Hayduk, 37 NY2d 497 , 499; Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv L Rev 721 , 745-748.) On the other hand, the incentive to the potential intervenors — the loss of their promotions, nearly three years old by the time Special Term declared the eligibility list invalid, and with it the accompanying increase in earnings — insured that their stance would be adversarial in every respect.

That several of the intervenors testified at the hearing before the referee in their capacities as officers of the ethnic societies that had given refresher courses during the week which elapsed between the two examinations, and that one intervenor even submitted an affidavit in opposition to the petition, cannot be said to have been an adequate substitute for the opportunity they would have had to defend their interests as full-fledged parties. By no means was this participation, either as affiant or as witnesses called by another party, sufficient to protect their interests. Without their right, for instance, to present independent evidence or to cross-examine witnesses, the incumbents were precluded from showing what indeed they had to show: that whatever irregularities may have occurred during the administering of the examination neither had any discernible effect on the test results nor caused any personal advantage to accrue to any of the intervenors. Failure to grant so much of appellants’ motion to intervene as would have permitted their participation in a de novo

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consideration of the merits therefore foreclosed a critical factual perspective from emerging (cf. Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv L Rev 721 , 740, 743, 748).

Finally, we note that, in situations analogous to that presented here, joinder has been required of parties whose positions would be forfeited upon the success of an action or proceeding brought by another (see Matter of Greenspan v O’Rourke, 27 NY2d 846 [in proceeding to invalidate election of officers in political party, joinder required of successful officers]; Matter of Marcus v Kaplan, 20 AD2d 841 [in proceeding to review commission’s revision of examination results, joinder required of one appointed on basis of test]; Matter of Skliar v Board of Educ., 45 AD2d 1012 [joinder required of incumbent teacher who would be displaced]; Kirkland v Board of Educ., 49 AD2d 693 , 694 [in proceeding to challenge appointment of school board official, joinder required of incumbent appointee; abuse of discretion not to permit intervention]).

We thus conclude that, since the appellants were not joined as parties ab initio, in order to effect a complete resolution of the controversy here, as well as to safeguard the appellants’ stake as necessary parties, the motion to intervene should have been granted in all respects.

For all these reasons, the order of the Appellate Division should be reversed and the matter remitted to the Supreme Court, New York County, for further proceedings in accordance with this opinion.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

Cases cited

Kelleher v. Poston 33 AD2d 535 N.Y. App. Div. 1969-10-02 p. 487
Skliar v. Board of Education 45 AD2d 1012 N.Y. App. Div. 1974-07-29 p. 488, p. 492
Crystal v. Board of Education 87 Misc 2d 632 N.Y. Sup. Ct. 1976-02-20 p. 488
Cichy v. Town of Cheektowaga 61 Misc 2d 88 N.Y. Sup. Ct. 1969-10-22 p. 488
Butler v. Hayduk 37 NY2d 497 N.Y. 1975-09-04 at 499 p. 488, p. 491
Greenspan v. O'Rourke 27 NY2d 846 N.Y. 1970-11-12 p. 488, p. 492
Biscone v. Scaringe 42 NY2d 1075 N.Y. 1977-10-17 p. 488
Bruns v. Suffolk County Civil Service Commission 56 Misc 2d 925 N.Y. Sup. Ct. 1968-05-09 p. 488
Schulman v. Department of Civil Service 82 Misc 2d 1084 N.Y. Sup. Ct. 1975-07-22 p. 488
Booker v. Reavy 281 NY 318 N.Y. 1939-10-17 p. 488
People ex rel. Moriarty v. Creelman 206 NY 570 N.Y. 1912-12-10 p. 488
Metzger v. Nassau County Civil Service Commission 54 AD2d 565 N.Y. App. Div. 1976-09-20 p. 488
Mills v. Bahou 55 AD2d 57 N.Y. App. Div. 1976-12-20 p. 488
Bobrowich v. Poston 52 AD2d 976 N.Y. App. Div. 1976-05-13 p. 488
Cowen v. Reavy 283 NY 232 N.Y. 1940-06-04 p. 488
Sloat v. Board of Examiners of the Board of Education 274 NY 367 N.Y. 1937-05-25 p. 488
Board of Regents of State Colleges v. Roth 408 US 564 SCOTUS 1972-06-29 p. 488
Challette, Inc. v. Town of Brookhaven 43 Misc 2d 264 N.Y. Sup. Ct. 1964-05-27 p. 488
Adelman v. Adelman 58 Misc 2d 803 N.Y. Sup. Ct. 1969-01-31 p. 488
Lezette v. Board of Education 35 NY2d 272 N.Y. 1974-10-08 p. 488
Schroeder v. City of New York 371 US 208 SCOTUS 1962-12-17 p. 488
Mullane v. Central Hanover Bank & Trust Co. 339 US 306 SCOTUS 1950-04-24 at 314 p. 488, p. 490
Cohen v. Fields 298 NY 235 N.Y. 1948-10-14 p. 489
Nelson v. Board of Examiners 21 NY2d 408 N.Y. 1968-02-21 p. 489
Meyer v. Kaplan 22 AD2d 449 N.Y. App. Div. 1965-02-10 p. 489
Meyer v. Kaplan 16 NY2d 693 N.Y. 1965-06-10 p. 489
Abo v. Krone 55 Misc 2d 884 N.Y. Sup. Ct. 1965-01-25 p. 489
Bucalo v. Kaplan 19 AD2d 478 N.Y. App. Div. 1963-11-21 p. 489
Donohue v. Cornelius 45 Misc 2d 42 N.Y. Sup. Ct. 1963-11-29 p. 489
Donohue v. Cornelius 22 AD2d 1000 N.Y. App. Div. 1964-12-30 p. 489
Fitzgerald v. Conway 195 Misc 397 N.Y. Sup. Ct. 1949-01-15 p. 489
Katz v. Hoberman 28 NY2d 530 N.Y. 1971-01-07 at 970 p. 489
Katz v. Hoberman 61 Misc 2d 411 N.Y. Sup. Ct. 1969-05-20 p. 489
Duquin v. Colucci 60 AD2d 995 N.Y. App. Div. 1978-01-20 p. 489
Marcus v. Kaplan 20 AD2d 841 N.Y. App. Div. 1964-03-27 p. 489, p. 492
Cash v. Bates 301 NY 258 N.Y. 1950-07-11 p. 489
First National Bank v. Shuler 153 NY 163 N.Y. 1897-06-08 at 170 p. 490