Mead v. Levitt

Motion by petitioner-appellant insofar as it seeks leave to appeal to the Court of Appeals from our order dated June 16, 1988 [141 AD2d 1008], which unanimously affirmed, without opinion, a judgment of the Supreme Court, New York County (David Saxe, J.), entered on February 17, 1988, granting a motion to dismiss for failure to state a cause of action, is granted. The instant CPLR article 78 proceeding was dismissed by IAS on the ground that it was not commenced prior to the expiration of the eligible list to which petitioner seeks certification, and that the pendency of an administrative proceeding did not serve to preserve petitioner’s job application beyond 561 the expiration of the list. We grant leave to appeal because our affirmance of that judgment is in conflict with Matter of State Div. of Human Rights v County of Onondaga (84 AD2d 931), a Fourth Department authority holding that the commencement of an administrative proceeding, as distinct from a judicial proceeding, during the life of an eligible list does serve to so preserve a job application. We also grant leave because the result herein may be in conflict with Matter of Deas v Levitt (139 AD2d 1), recently decided by this court. Although the constitutional arguments made in Deas were not, until now, made herein, whether petitioner should have the opportunity to make such arguments to the Court of Appeals is a question which, we think should be decided by the Court of Appeals, particularly in view of the appeal that has been taken in Deas to the Court of Appeals and petitioner’s clear interest in its outcome. Concur — Kupferman, J. P., Sandler, Sullivan, Kassal and Wallach, JJ.