
    In the Matter of New York City Department of Environmental Protection, Appellant, v New York City Civil Service Commission et al., Respondents.
    Argued June 5, 1991;
    decided September 12, 1991
    
      POINTS OF COUNSEL
    
      Victor A. Kovner; Corporation Counsel (Elizabeth Dvorkin and Francis F. Caputo of counsel), for appellant.
    I. This Court should adhere to its holding that decisions on appeal by a Civil Service Commission made pursuant to Civil Service Law § 76 are reviewable in the courts of this State. (Matter of New York City Dept. of Sanitation v New York City Civ. Serv. Commn., 68 NY2d 978; Board of Commrs. v Nassau County Civ. Serv. Commn., 121 AD2d 494; Matter of Board of Educ. v Cappola, 83 AD2d 751, 54 NY2d 611; Matter of City Council v Carbone, 54 AD2d 461; Matter of Pauling v Smith, 46 AD2d 759; Matter of Santella v Hoberman, 29 AD2d 655; Matter of New York City Hous. Auth. v New York City Civ. Serv. Commn., 94 Misc 2d 183, 72 AD2d 973, 49 NY2d 707; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Pell v Board of Educ., 34 NY2d 222.) II. The Civil Service Commission’s decision was purely arbitrary because it reversed a determination made after a full administrative trial based solely on its own reassessment of the witnesses’ credibility, after it found both witnesses’ stories plausible. (Matter of Berenhaus v Ward, 70 NY2d 436; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Allman v Koehler, 161 AD2d 114, 76 NY2d 706; Matter of Stork Rest. v Boland, 282 NY 256; Eschbach v Eschbach, 56 NY2d 167; 829 Seventh Ave. Co. v Reider, 111 AD2d 670, 67 NY2d 930; Northern Westchester 
      
      Professional Park Assocs. v Town of Bedford, 60 NY2d 492; Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203; Oelsner v State of New York, 66 NY2d 636.)
    
      Jean Rodgers Mills for New York City Civil Service Commission, respondent.
    I. A Civil Service Commission possesses a special expertise in employee discipline and other civil service matters; therefore, a court, if it is permitted to review a Commission’s determination, should have a very limited scope of review. (Matter, of City Council v Carbone, 54 AD2d 461; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of City of New York v City Civ. Serv. Commn., 141 Misc 2d 276; Matter of Shurgin v Ambach, 56 NY2d 700; Matter of Horvat [Corsi], 300 NY 704; Matter of Ahsaf v Nyquist, 37 NY2d 182; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Allman v Koehler, 161 AD2d 114, 76 NY2d 706; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Simpson v Wolansky, 38 NY2d 391.) II. Under any standard of review, the Commission acted properly here. (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Edison Co. v Labor Bd., 305 US 197; Universal Camera Corp. v Labor Bd., 340 US 474; Matter of Sowa v Looney, 23 NY2d 329.)
    
      Jeffrey S. Wasserman for John Daly, respondent.
    I. The decision of the Civil Service Commission should be final and conclusive. (Matter of City Council v Carbone, 54 AD2d 461; Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Matter of Board of Educ. v Allen, 6 NY2d 127.) II. The scope of review of the decision of the Civil Service Commission is limited to whether they acted purely arbitrarily. (Matter of City Council v Carbone, 54 AD2d 461; Board of Commrs. v Nassau County Civ. Serv. Commn., 121 AD2d 494; Matter of Short v Nassau County Civ. Serv. Commn., 59 AD2d 157; Matter of Pauling v Smith, 46 AD2d 759; Matter of Leisner v Bahou, 97 AD2d 860, 61 NY2d 985, 62 NY2d 605; Matter of Allman v Koehler, 161 AD2d 114, 76 NY2d 706; Matter of Board of Educ. v Cappola, 83 AD2d 751; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Respondent John Daly, an employee of the Department of Environmental Protection’s Owl’s Head Water Pollution Control Plant, was charged with threatening Jerome Gibbs, a fellow employee, and then punching him in the stomach and knocking him into a wall. Earlier in the day, Gibbs had allegedly been the subject of a racially motivated attack. According to Gibbs, Daly’s threats were designed to keep Gibbs from pressing criminal charges against the two coemployees who had been involved in the earlier incident.

In July of 1986, the Department charged Daly with misconduct arising out of the incident. After a hearing at which both Daly and Gibbs testified, the Administrative Law Judge credited Gibbs’ testimony and recommended that Daly be dismissed. The Commissioner of the Department adopted the findings of the Administrative Law Judge and terminated Daly’s employment effective October 31,1986.

Daly appealed the determination to the Civil Service Commission pursuant to Civil Service Law § 76. The Commission reviewed the transcript of the administrative hearing and reversed the determination of guilt and penalty of dismissal, ordering Daly restored to his position with full back pay. The Department commenced this CPLR article 78 proceeding in August 1988, seeking a judgment reversing the determination of the Civil Service Commission and reinstating the determination of guilt and the penalty of dismissal. Supreme Court, New York County, transferred the matter to the Appellate Division, which confirmed the determination of the Civil Service Commission and dismissed the proceeding, with two Justices dissenting.

On this appeal, we must construe the language of section 76 of the Civil Service Law to determine whether there is any impediment to our review of the Civil Service Commission’s determination. Section 76 permits certain aggrieved employees to appeal a determination in a disciplinary proceeding either to the Commission or to the courts through an article 78 proceeding. If the employee chooses to take an appeal to the Commission, as Daly did in this case, subdivision (3) provides that the Commission’s decision "shall be final and conclusive, and not subject to further review in any court.” We must decide, then, the extent to which this language affects our competence to review the determination at issue here.

We conclude, based on the language of the statute, its legislative history and our case law, that the merits of the determination of the Civil Service Commission in this case are not reviewable in the courts.

This Court has recognized that the Legislature is permitted to restrict the availability of judicial review. In Matter of Guardian Life Ins. Co. v Bohlinger (308 NY 174), we stated that "[although the courts will be exceeding [sic] slow to rule that the discretion of an administrative officer or board 'may be exercised unhampered by judicial review’ * * * it is settled that the legislature may, if it sees fit, provide that certain action 'is not a matter open to [such] review’ ” (id., at 180, citing Matter of Millman v O’Connell, 300 NY 539, 540; Matter of Schwab v McElligott, 282 NY 182, 186; Reckler v Quinn, 280 NY 768; Matter of Calvary Presbyt. Church v State Liq. Auth., 275 NY 552; Switchmen’s Union v Board, 320 US 297, 300). In Matter of Guardian Life, we held that the decision of the Superintendent of Insurance to deny an application submitted by the petitioner insurance company for approval to purchase real property was not subject to judicial review because there was no provision in the Insurance Law authorizing judicial review of such determinations. The Court held that although there was no provision expressly prohibiting review, this was the clear intent of the Legislature, which elsewhere in the statute had specifically indicated which determinations of the Superintendent were to be subject to review (id., at 181).

In Abbott Labs. v Gardner (387 US 136, 140), the United States Supreme Court, applying a "clear and convincing evidence” test, held that "judicial review of a final agency action by an aggrieved person will not be cut pif unless there is persuasive reason to believe that such was the purpose of Congress” (see also, Barlow v Collins, 397 US 159; but see, Johnson v Robison, 415 US 361). Our own cases state a similar rule (see, e.g., Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 11).

The language contained in section 76 is clear and unambiguous in its intent to preclude judicial review of Commission decisions. The legislative history further supports this conclusion. In an April 28, 1941 letter to Governor Lehman, Senator Seymour Halpern, the sponsor of the 1941 bill which added this language to the Civil Service Law, wrote that "[the bill was] designed to make removals and disciplinary procedure a matter of administration and to keep such cases out of the courts.”

Our consideration of this question does not end with the statutory language and its legislative history, however. "Even where judicial review is proscribed by statute, the courts have the power and the duty to make certain that the administrative official has not acted in excess of the grant of authority given * * * by statute or in disregard of the standard prescribed by the legislature” (Matter of Guardian Life Ins. Co. v Bohlinger, supra, at 183).

This standard of review, however, is exceedingly limited. In earlier cases construing former Education Law § 310, which precluded judicial review in language similar to that at issue here, we looked to whether the agency action was "purely arbitrary” (see, e.g., Matter of Baer v Nyquist, 34 NY2d 291, 298; Matter of Ross v Wilson, 308 NY 605; Matter of Levitch v Board of Educ., 243 NY 373, 375). In Baer (supra), we stated that "purely arbitrary” decisions are those that "contravene statutes or constitutional provisions, or countenance their contravention” (id., at 298). Because of the similarity between "purely arbitrary” and "arbitrary and capricious,” an entirely separate standard of review applicable to most agency actions, our use of the "purely arbitrary” terminology has led to some confusion. "Purely arbitrary” and "arbitrary and capricious” are not the same and should not be understood as providing the same kind or degree of review.

For clarity, we abandon the "purely arbitrary” terminology in referring to the standard of review applicable when the Legislature has evinced its intent that judicial review be precluded. But we emphasize that however explicit the statutory language, judicial review cannot be completely precluded. First, if a constitutional right is implicated, some sort of judicial review must be afforded the aggrieved party. We suggested as much in dictum in Long Is. Coll. Hosp. v Cather-wood (23 NY2d 20, 36, n 3), in which we noted that "in the absence of some procedure for the review of a final agency action, a serious constitutional question might arise, for, as was recently observed, 'there must be some type of effective judicial review of final, substantive agency action which seriously affects personal or property rights’ ” (quoting Gardner v Toilet Goods Assn., 387 US 167, 177, per Fortas, J.).

Second, judicial review is mandated when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction. In Matter of Pan Am. World Airways v New York State Human Rights Appeal Bd. (61 NY2d 542, 548), for example, we stated that even if statutory language precluded review, ”[s]ome standards to guide [the agency’s] broad discretion are necessary if the statute is to be valid.” Quoting from Baer (supra), we said that a court should step in if an agency acts in violation of the Constitution, statutes or its own regulations (id., at 547-548; see also, Marine Midland Bank v New York State Div. of Human Rights, 75 NY2d 240, 246).

This, we believe, was the original understanding of the term "purely arbitrary.” As noted above, this is an extremely narrow standard of review. Once courts have determined that an agency has not acted in excess of its authority or in violation of the Constitution or of the laws of this State, judicial review is completed.

Given this limited standard, the substance of the Commission’s determination in this case is unreviewable in the courts. Despite the fact that the Commission disregarded the credibility determinations of the Administrative Law Judge, there is no showing that this was unconstitutional, illegal, or outside the Commission’s jurisdiction. This determination should be treated, therefore, in all respects as final and conclusive.

Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Judgment affirmed, with costs.  