# Deas v. Levitt

> Appellate Division of the Supreme Court of the State of New York · June 28, 1988 · 139 A.D.2d 1

URL: https://www.frixlaw.com/law-library/cases/5903738

## Case

- **Full name:** In the Matter of Melvin Deas v. Judith Levitt, as Director of the New York City Department of Personnel
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** June 28, 1988
- **Citations:** 139 A.D.2d 1; 530 N.Y.S.2d 807; 1988 N.Y. App. Div. LEXIS 7202
- **Precedential status:** Published
- **Opinion:** Concurrence by Wallach
- **Judges:** Milonas, Sullivan, Wallach
- **Cited by:** 2 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/5903738

## Opinion text

Wallach, J.
(concurring). I do not think that Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 NY2d 906 ) and Matter of New York City Dept. of Personnel v New York State Div. of Human Rights ( 44 NY2d 904 ) can be factually distinguished from the situation presented in this case. But what persuades me to vote for reversal is that strict application of the rule in those decisions results in an unconstitutional denial of a due process opportunity to be heard, and also an impermissible withholding of equal protection of law.
In Logan v Zimmerman Brush Co. ( 455 US 422 ), the United States Supreme Court held that to deny Logan relief on the basis of a loss of jurisdiction by the Ohio regulatory agency charged with preventing employment discrimination would be to countenance the denial of procedural due process by foreclosing his right to a hearing on the merits. That, indeed, was the thrust of the first opinion for the Logan court by Justice Blackmun, with five other Justices concurring. In a second "separate” opinion, Justice Blackmun, joined by three other *14 Justices, 1 found that Logan was also denied equal protection because the Ohio statutory scheme, if applied, created an irrational class distinction, namely, one group for whom the agency acted timely could succeed, but the second disfavored group (for whom the agency might act tardily) would inevitably fail to obtain a hearing.
The New York scheme under review here reveals a more irrational distinction than that found unconstitutional in Ohio. 2 The first distinction to fall short of equal protection is the differentiation of those litigants who pursue administrative relief rather than a premature action in the courts. Expressly left "open” in Tanzosh (supra) was the effect of commencing an action — albeit doomed to defeat for failure to exhaust the administrative remedy — and whether this step would preserve the petitioner’s right to litigate over an "expired” list. Even more pertinent here is the artificial distinction drawn between the petitioner who prevails in the administrative proceeding, and the one who does not. Paradoxically it is the second unsuccessful petitioner who ends up in a better position: he at least has standing to institute an immediate CPLR article 78 petition as a party aggrieved. By the same token, the "winner” at the agency is deprived of access to the courts for lack of aggrievement, but if the agency should delay until the relevant list expires, that petitioner’s rights are extinguished. Yet that is precisely the effect of the dissenters’ position, and why it violates due process both in its equal protection, as well as procedural, sense.
Accordingly, I vote to reverse.
. The case is unusual in that one Justice wrote two opinions.
. It would appear that these due process arguments were not made, and therefore not addressed, by the Court of Appeals in Matter of Tanzosh v New York City Civ. Serv. Commn. ( 44 NY2d 906 ) and Matter of New York City Dept. of Personnel v New York State Div. of Human Rights ( 44 NY2d 904 ).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5903738. Public record. Not legal advice.