Steele v. City of Buffalo Department of Community Development

Appeal unanimously dismissed, without costs. Memorandum: Petitioner was hired as assistant director of intervenor-appellant, Housing Opportunities Made Equal, Inc., a nonprofit agency having a contract with the City of Buffalo and funded by the city primarily through Federal Community Development Block grants. A term in the contract between the city and the agency requires that staff vacancies be filled with city residents. The contract makes provision, however, for a waiver of the residency requirement in the sole discretion of respondent commissioner. Petitioner appeals from a dismissal without prejudice and without an evidentiary hearing of his CPLR article 78 proceeding in which he asserts a claim of impermissible discriminatory enforcement of the contractual residency requirement. This appeal from a nonfinal order in a CPLR article 78 proceeding does not lie as of right; nor has permission to appeal been sought or granted. We therefore dismiss the appeal (see CPLR 5701, subd [b], par 1; Matter of Wallace v Wyandanch Union Free School Dist., 58 AD2d 813; Cirasole v Simins, 48 AD2d 795; Hawley v Town of Aurora, 41 AD2d 588). Had we reached the merits of this appeal we would have affirmed Special Term’s dismissal without prejudice; petitioner has not presented sworn affidavits or other proof supplying factual detail showing that he is more likely than not to succeed on the merits (see Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686, 695-696). (Appeal from order of Supreme Court, Erie County, McGowan, J. — art 78.) Present — Simons, J. P., Hancock, Jr., Callahan, Denman and Moule, JJ.