IN RE: Brigitte CAROZZA (2007)

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered January 24, 2006, which granted respondents' cross motion and dismissed this article 78 proceeding, unanimously affirmed, without costs.

After an adjudication that petitioners had been wrongfully disqualified retroactively from consideration for promotion by reason of having just been placed in new job titles (see Matter of Carozza v. City of New York, 10 A.D.3d 488, 781 N.Y.S.2d 644 [2004] ), they were placed on promotion eligibility lists just one month before those lists expired.   They immediately brought this proceeding seeking the creation of a special eligible list for them, pursuant to Civil Service Law § 56(3), which would remain open for one year.

Petitioners' successful challenge to their disqualification was not based on a finding that an error had caused a flaw in the entire promotional process, resulting in a list that did not accurately measure the merit and fitness of those appearing thereon.   Accordingly, the remedy sought herein does not comport with article V, § 6 of the New York State Constitution.   Under the circumstances, it cannot be said that the original lists had no legal existence and thus could not have expired (see Matter of City of New York v. New York State Div. of Human Rights, 93 N.Y.2d 768, 774-775, 698 N.Y.S.2d 594, 720 N.E.2d 870 [1999];  Matter of Deas v. Levitt, 73 N.Y.2d 525, 541 N.Y.S.2d 958, 539 N.E.2d 1086 [1989], cert. denied 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 [1989];  compare Matter of Pena v. New York City Civ. Serv. Commn., 27 A.D.3d 293, 811 N.Y.S.2d 66 [2006], lv. denied 7 N.Y.3d 705, 819 N.Y.S.2d 873, 853 N.E.2d 244 [2006] ).