The opinion
Silverman, J. (dissenting.)
I would reverse the judgment appealed from and dismiss the petition, without prejudice to petitioner’s applying within three months from now for a reexamination to be held within one year in accordance with the prior offer of the college.
The judgment, which this court now affirms, directs the City University of the City of New York to grant an advanced degree to petitioner, notwithstanding the fact that in the judgment of the responsible faculty petitioner has not met the academic standards for that degree. This involves "serious questions of law and policy involved in a judicial awarding of an academic degree” against which the Court of Appeals clearly warns in Matter of Healy v Larsson ( 35 NY2d 653, 654 ). It may well be that members of the faculty misinformed *200 petitioner and others as to the method of determining the passing grade on the comprehensive examination. It seems likely that this was at most an inadvertent error. It is straining too much to say that petitioner acted differently on the examination from the way he would have acted if he had known what the grading standards were; obviously he did his best. The college, trying both to be fair to petitioner and yet preserve its academic standards, offered petitioner the opportunity to have his examination failure expunged from his record and to permit him to retake the examination. Petitioner declined that opportunity and instead brought this litigation. I think the college acted fairly and reasonably. I do think, however, that the opportunity to retake the examination should be held open to petitioner for a reasonable time after the conclusion of this litigation.
Kupferman, J. P., Yesawich and Sandler, JJ., concur with Fein, J.; Silverman, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on February 22, 1978, affirmed, without costs and without disbursements.