IN RE: James HUGHES (2004)

Judgment, Supreme Court, New York County (Faviola A. Soto, J.), entered April 25, 2003, which, insofar as appealed from, granted the CPLR article 78 petition to the extent of finding arbitrary and capricious respondent's failure to place the title of “oiler” in the line of promotion to the titles of “crane operator” and “tractor operator,” and, pursuant to that finding, directed respondent, pursuant to Civil Service Law § 81(1), to place petitioners, formerly employed as crane and tractor operators, on the preferred list for filling vacancies in “oiler” positions, and to place respondents in such positions now held by provisional oilers, unanimously affirmed, without costs.

 Supreme Court properly found that respondent acted arbitrarily and capriciously (see Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231-232, 356 N.Y.S.2d 833, 313 N.E.2d 321) in failing to place the title of “oiler” in the line of promotion to the titles of “tractor operator” and “crane operator.”   Although it was undisputed that the predecessor “oiler (portable)” title had previously been classified in the line of promotion to both the “crane operator” or “tractor operator” titles in the Department of Sanitation, respondent failed to articulate any substantive rationale for its decision to remove the unified “oiler” title from such line of promotion.   Respondent merely asserted, in conclusory fashion, that some rationale for the change existed, and this was insufficient.

 Respondent's argument that petitioners' challenge to the subject determination is barred by the four-month statute of limitations (CPLR 217) is unavailing.   The record shows that respondent failed to raise the statute of limitations defense as an objection in point of law in the court below, either in the answer to the petition or by motion to dismiss the petition (see CPLR 404[a], 7804[f];  cf. Rosenthal v. City of New York, 283 A.D.2d 156, 157, 725 N.Y.S.2d 20, lv. denied 97 N.Y.2d 654, 737 N.Y.S.2d 54, 762 N.E.2d 932).   Accordingly, the defense of statute of limitations was waived (see CPLR 3211[a][5], [e] ).