IN RE: Application of Joseph COLAVITO (2000)

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered July 19, 1999, which dismissed the petition pursuant to CPLR article 78 challenging respondent's grading of a civil service exam for the position of blacksmith, unanimously affirmed, without costs.

Petitioner took the written part of the examination on April 7, 1990 and the practical part in February, 1991.   Thereafter, petitioner received notice of his failing grade.   On May 8, 1991 an eligible list for the position was established;  and on May 8, 1995 the eligible list expired (Civil Service Law § 56).

 This Article 78 proceeding was commenced in November 1998 and petitioner served a verified supplemental petition in January, 1999.   The petition, essentially challenging respondents' grading of the practical part of the examination, was properly dismissed.   Where a claimant seeks to be placed on a special eligible list for a civil service position, he must commence a proceeding before the list expires, challenging the validity of the list itself (see, Deas v. Levitt, 73 N.Y.2d 525, 527, 541 N.Y.S.2d 958, 539 N.E.2d 1086, cert. denied 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314;  see also, Matter of City of New York v. New York State Div. of Human Rights, 93 N.Y.2d 768, 698 N.Y.S.2d 594, 720 N.E.2d 870).

MEMORANDUM DECISION.