Matter of Tanzosh v. New York City Civil Serv. Comm'n

44 N.Y.2d 906 (1978)

In the Matter of William Tanzosh, Appellant, v. New York City Civil Service Commission et al., Respondents.

Court of Appeals of the State of New York.

Argued April 27, 1978.

Decided June 8, 1978.

David Goldfarb, Marshall Green, Kalman Finkel, John Kirklin and Joan Mangones for appellant.

Allen G. Schwartz, Corporation Counsel (Carolyn Demarest, Leonard Koerner and Ronald E. Sternberg of counsel), for respondents.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

*907MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs. Petitioner did not commence this article 78 proceeding seeking appointment until after the subject list of eligibles had expired. Accordingly, the courts may grant him neither appointment from that expired list (Matter of Cash v Bates, 301 N.Y. 258, 261; Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 44 N.Y.2d 907, decided herewith; cf. Matter of Mena v D'Ambrose, 44 N.Y.2d 428), nor the equivalent relief he now seeks of retroactive seniority in his subsequently obtained civil service position (cf. Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 58 AD2d 787, affd 44 N.Y.2d 907, decided herewith). We express no view as to what would be the proper result had petitioner instead commenced a proceeding prior to the expiration of the list and that proceeding had been dismissed for a failure to exhaust his administrative remedies.

Order affirmed.