
    In the Matter of Fred Wilson, Appellant, v Catherine M. Abate, as Commissioner of the New York City Department of Correction, et al., Respondents.
    [621 NYS2d 566]
   Judgment (denominated an order), Supreme Court, New York County (Harold Tompkins, J.), entered on or about August 23, 1993, which granted respondent’s motion to dismiss petitioner’s application pursuant to CPLR article 78 seeking to extend the expiration date of an eligible list for the position of Captain in the Department of Correction, unanimously affirmed, without costs.

As petitioner has not challenged the constitutionality of the list, the list need not be extended merely due to the commencement of the litigation within the list’s lifetime (Matter of Deas v Levitt, 73 NY2d 525, cert denied 493 US 933). We agree with the IAS Court that respondents’ refusal to exercise their discretion to extend the list (Matter of DiNatale v Levitt, 76 NY2d 548) was not arbitrary or capricious under the instant circumstances. Concur—Ellerin, J. P., Ross, Williams and Tom, JJ.  