
    In the Matter of New York City Department of Personnel, Respondent, v New York State Division of Human Rights, Appellant.
    Argued April 27, 1978;
    decided June 8, 1978
    
      APPEARANCES OF COUNSEL
    
      Elaine Berger and Ann Thacher Anderson for appellant.
    
      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Complainant did not file her complaint until after the list of eligibles from which she seeks appointment had expired. Hence, even though she might have been improperly passed over for appointment due to discrimination on the basis of age, she may not now seek appointment from that expired list (Matter of Cash v Bates, 301 NY 258, 261; Matter of Tanzosh v New York City Civ. Serv. Comm., 44 NY2d 906, decided herewith). This case is to be distinguished from one in which a proceeding to compel appointment is commenced prior to the expiration of the list (see Matter of Mena v D’Ambrose, 44 NY2d 428, decided May 11, 1978).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  