
    In the Matter of Robert L. Mitchell, Appellant, v Board of Education of the City of New York et al., Respondents.
    [651 NYS2d 115]
   —In a proceeding pursuant to CPLR article 78 to review a determination of the respondents which denied the petitioner’s request that he be appointed to the civil service position of Area Manager of School Maintenance, the petitioner appeals from a judgment of the Supreme Court, Kings County (Golden, J.), dated November 3, 1995, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

As a result of budgetary constraints, the respondents were authorized to eliminate two of four competitive civil service area manager positions (see, Matter of Saur v Director of Creed-moor Psychiatric Ctr., 41 NY2d 1023; Matter of Johnson v Board of Educ., 155 AD2d 896). The petitioner, who was next on the list of eligible candidates for such a position, has not demonstrated any entitlement to relief under the circumstances presented (see, Matter of Pollock v Crosson, 153 Misc 2d 419, affd 203 AD2d 466). Even assuming that he was entitled to consideration for either of the two abolished area manager positions, pursuant to the "three-in-one” rule (Civil Service Law § 61), he was not entitled to appointment as a matter of law (see, Matter of Andriola v Ortiz, 82 NY2d 320, cert denied sub nom. Andriola v Antinoro, 511 US 1031; Matter of Greco v Department of Personnel, 226 AD2d 105). Moreover, as the respondents have demonstrated that the positions to which he aspired have been eliminated, the petitioner possesses no viable claim for relief since it would be an academic exercise to require that he be considered for positions that were never permanently filled. Rather, as the respondents have acknowledged, the petitioner remains eligible for one of the two remaining area manager positions should one become available prior to the expiration of the current certified list.

We have reviewed the petitioner’s remaining contentions and find them to be without merit. Miller, J. P., Ritter, Pizzuto and Santucci, JJ., concur.  