The motion court properly granted reargument on the ground that it failed to apprehend that the Department made its decision not to employ petitioner while in possession of Maryland appellate court documents indicating that the Maryland criminal proceedings against petitioner were disposed of in a manner analogous to New York's adjournment in contemplation of dismissal (CPLR 2221[d][2]; see, Matter of New York City Department of Correction v. White, 163 A.D.2d 250). That was precisely the tenor of petitioner's personal history questionnaire, on which petitioner forthrightly disclosed that he had been arrested in Maryland but indicated that the charges did not result in a "conviction ". We reject the Department's contention that its failure to appreciate the essential truth of this representation, and its resulting unlawful discrimination against petitioner on the basis of his arrest record, should be excused because a reasonable reading of the Maryland criminal case records made it appear that petitioner had been convicted of a crime. Even the Maryland superior court documents that the Department admits it had at all relevant times indicate that petitioner had taken an appeal, and should have caused the Department to make a more thorough inquiry before concluding that petitioner had lied on the questionnaire. However, by reason of the one-in-three rule of Civil Service Law § 61, petitioner's only judicially available remedy is a direction that he be reconsidered for appointment (see, Matter of Andriola v. Ortiz, 82 N.Y.2d 320,cert denied sub nom. Andriola v. Antinoro, 511 U.S. 1031;Matter of Greco v. Department of Personnel of City of New York, 226 A.D.2d 105; cf., Matter of Beame v. DeLeon, 87 N.Y.2d 289), and we modify accordingly. We also modify to vacate the award of attorneys' fees as without basis in any pertinent contract, statute or court rule (see_, Matter of A. G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.