# Swierupski v. Korn

> Appellate Division of the Supreme Court of the State of New York · July 30, 1979 · 69 A.D.2d 632

URL: https://www.frixlaw.com/law-library/cases/5833236

## Case

- **Full name:** In the Matter of William Swierupski v. Gabriel S. Korn, as One of the Commissioners of the Nassau County Civil Service Commission
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 30, 1979
- **Citations:** 69 A.D.2d 632; 419 N.Y.S.2d 87; 1979 N.Y. App. Div. LEXIS 11842
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cohalan
- **Judges:** Cohalan, Shapiro, Suozzi
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5833236

## Opinion text

Cohalan, J. (concurring in part and dissenting in part).
I agree that the judgment should be reversed; however, I would convert the proceeding to an action for a declaratory judgment.
The petition alleged, inter alia, that the regulation requiring color perception examinations to be based solely upon the Ishihara Test is invalid. Since jurisdiction has been obtained, this issue is a proper subject for a declaratory judgment action. Accordingly, I would deem it such. The petitioner’s pleading currently before the court should be deemed a complaint, and the answers of the respondents should be deemed the answers of the defendants. Any party should be permitted to move for leave to amend his or its pleading and the action should thereafter continue as one for a declaratory judgment (see CPLR 3001, 3017).
*642 Damiani, J. P., concurs with Shapiro, J.; Suozzi, J., concurs in the result, in an opinion; Cohalan, J., concurs in part and dissents in part, in an opinion in which Titone, J., concurs.
Judgment of the Supreme Court, Nassau County, entered May 25, 1978, reversed, on the law, without costs or disbursements, and proceeding remitted to Special Term for further proceedings consistent herewith.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5833236. Public record. Not legal advice.