
    In the Matter of Daniel Mena, Jr., et al., Respondents-Appellants, v Alphonse E. D’Ambrose et al., Constituting the Civil Service Commission of the City of New York, et al., Appellants-Respondents.
    Argued March 30,1978;
    decided May 11,1978
    
      POINTS OF COUNSEL
    
      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan of counsel), for Alphonse E. D’Ambrose and others, appellants-respondents.
    Despite the seemingly absolute bar of section 56 of the Civil Service Law against a court’s granting relief of the type here sought in appropriate cases, where such relief is sought prior to the expiration of an eligible list, the grant of such relief may be lawful, however on the facts of this case, the granting of such relief was so uncalled for as to constitute an abuse of discretion as a matter of law. (Matter of Cash v Bates, 301 NY 258; Matter of Singer v Schechter, 17 AD2d 204; Matter of Abrams v Bronstein, 33 NY2d 488; Matter of Amendola v Bronstein, 66 Misc 2d 50; Matter of Acosta v Lang, 13 NY2d 1079.)
    
      John A. Murray, Alphonse E. D’Ambrose and Helen R. Cassidy for David Yunich, appellant-respondent.
    I. The court below abused its discretion as a matter of law in granting prohibition and in effect enjoining the expiration, by operation of law, of eligible list PE 1507. (Hurley v Board of Educ., 270 NY 275; Matter of Schuyler v State Univ. of N. Y., 31 AD2d 273; Matter of Lefkowitz v Justices of Supreme Ct., Albany County, 27 AD2d 757; Dun & Bradstreet, Inc. v City of New York, 276 NY 198; Matter of Wolff v Hodson, 285 NY 197; Tonkin v Leary, 234 App Div 448, 259 NY 510; Matter of Bacon v Huie, 287 NY 813; Matter of Goldstein v Lang, 23 AD2d 483; Brown v Craig, 209 App Div 11; People ex rel. Hammond v Leonard, 74 NY 443.) II. The order below, which directed appellants to comply with the terms and conditions of an unsigned stipulation decreeing petitioners’ endless eligibility for certification, was not consistent with appellant authority’s right of selection under one-out-of-three (Civil Service Law, § 61). (City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of Berger v Walsh, 291 NY 220; Matter 
      
      of Turel v Delaney, 287 NY 15; People ex rel. Balcom v Mosher, 163 NY 32; Matter of Holt v Jansen, 26 Misc 2d 247, 283 App Div 796, 307 NY 939.)
    
      Ronald H. Shechtman and Murray A. Gordon for respondents-appellants.
    I. The relief herein granted is not precluded by the expiration of the eligibles list from PE 1507 and is otherwise lawful and appropriate in the circumstances of the proceeding at bar. (Abarno v City of New York, 3 Misc 2d 1053, 6 AD2d 1040, 7 AD2d 837; Matter of Simon v Kennedy, 5 Misc 2d 17; Matter of Singer v Schechter, 17 AD2d 204; Matter of Cash v Bates, 301 NY 258; Matter of Acosta v Lang, 13 NY2d 1079; Matter of Amendola v Bronstein, 66 Misc 2d 50; Matter of Mulkeen v Bronstein, 33 NY2d 520; Matter of Lamm v Clauson, 275 App Div 673, 299 NY 632; Brown v Craig, 209 App Div 11.) II. The court below properly ruled that the Supreme Court erred in denying petitioners’ motion to renew and/or reargue. (Mindy’s Wine Cellar v American & Foreign Ins. Co., 51 AD2d 650; Thornlow v Long Is. R. R. Co., 33 AD2d 1027; Soffair v Koffler, 29 AD2d 659, 23 NY2d 897.)
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is modified in accordance with the following memorandum. In this article 78 proceeding petitioners sought an order directing respondents to certify them for appointment and also to direct their appointment to the position of captain in the New York City Transit Police Department. In the alternative an order enjoining the termination of the eligible list was sought. On the basis of their performance on a competitive examination, petitioners were placed on an eligible list promulgated on December 23, 1971. At the time of promulgation, petitioners were placed second, third and fourth, respectively, below one Mickulas on the list. As it ultimately turned out, Mickulas was the last person to receive a promotion from the list.

In September, 1973 the eligible list was adjusted pursuant to court order to reflect corrections for improperly graded answers (Russo v Bronstein, Supreme Ct, New York County, Kapelman, J.) but it was corrected only for the specific petitioners in that case. On October 26, 1974 Mickulas was promoted to captain. If at this time, the list had been corrected for all persons on it, Mickulas would have been placed below the three petitioners, and one of them would have received the promotion. On May 23, 1975, the same examination, which had also been used for promulgation of an eligible list in the New York City Police Department, was again ordered corrected to allow alternate answers (Lydon v Bronstein, Supreme Ct, New York County, Greenfield, J.). Finally, in October, 1975 the commission adjusted the eligible list to reflect the corrected status of the petitioners but shortly thereafter petitioners were informed that their revised eligibility would not extend beyond the expiration of the list, which occurred in December, 1975.

The petitioners commenced this proceeding in November, 1975 seeking certification for appointment. After commencement of this litigation all the parties, including the Civil Service Commission, agreed to a proposed stipulation of settlement except the chairman of the Transit Authority who contended that the expiration of the eligible list would preclude relief. The proposed stipulation (common in the circumstances here presented) provided in part, that "[t]he right of the individuals specified above to be certified for appointment shall not be abridged by any act of the respondents and shall not expire or otherwise be terminated prior to the time each such person is certified and either declines appointment, is appointed, or is 'passed over’, or prior to the period provided therefore by Section 56 of the Civil Service Law, whichever shall later occur.” Since the Transit Authority refused to agree to the stipulation, the action proceeded with respondents contending that section 56 of the Civil Service Law prescribed the permissible duration of an eligible list, leaving them powerless to extend the list beyond December, 1975.

Special Term dismissed the petition holding that respondents had no authority to extend the list beyond its expiration date. The Appellate Division modified by ordering the relief specified in the stipulation but denying immediate appointment on the grounds that certification does not ensure promotion. The Appellate Division reasoned that petitioners had suffered an injury from the delayed recomputation of their scores and "it should not go unrectified by wielding an expiration date to defeat rights timely asserted but belatedly recognized” (58 AD2d 514, 515).

This action was commenced during the active life of the eligible list (compare Matter of Cash v Bates, 301 NY 258, with Matter of Singer v Schechter, 17 AD2d 204) and the fact that the list expired during the course of the litigation ought not and does not preclude relief. Although section 56 of the Civil Service Law provides that an eligible list shall last no longer than four years, that statute was not intended to exonerate known and continued wrongs of the offending testing agency by the mere passage of time. It is true that the statute calls for the termination of any lawful list after the specified time but where it is demonstrated that errors have rendered the list in derogation of the merit and fitness standards (NY Const, art V, § 6), and candidates have demonstrated that they were aggrieved by those errors, the statutory durational period does not begin to run until the list is corrected, which occurred on October 7, 1975.

It is undisputed that petitioners’ scores were improperly computed resulting in an inaccurate eligible list as to them and that they were aggrieved thereby. Thus they are entitled to the continuation of a special eligible list, consisting of the names of the three petitioners, for a period consistent with section 56 commencing at the time when the list was corrected. The list, as continued, will be subject to the applicable Civil Service Law provisions, such as section 61 which provides for the selection of one-out-of-three certified persons. Thus the list shall continue until such time as one of the petitioners is appointed pursuant to the Civil Service Law or until it expires by operation of section 56, whichever occurs first. To apply the statute in the strict and inflexible manner suggested by the dissent would in effect allow the respondents to circumvent the provisions of the Civil Service Law which require appointment in accord with specified standards. These standards were adopted pursuant to the constitutional direction that all appointments be made on the basis of merit and fitness. Although there does exist a strong policy that appointments be made from contemporary lists, this policy must be secondary to the constitutional mandate governing appointment which is implemented by the Civil Service Law standards.

In Ciaccia v Board of Educ. (271 NY 336) and Hurley v Board of Educ. (270 NY 275) this court was concerned with preserving the integrity of the entire civil service system when the Legislature had attempted to revive and to extend, retroactively, an eligible list that had previously expired. Legislative circumvention of the legal expiration of the list, after it had already terminated, was viewed as an attempt to avoid the constitutional merit and fitness requirements and permit appointment by favor rather than appointment on the basis of qualification (Hurley v Board of Educ., supra, p 280). In the present case we are again asked to maintain the integrity of the civil service system but here the violation of merit and fitness stems not from legislative enactment affecting the entire system but from the wrongful acts of the respondents affecting a few individuals and it is suggested that the durational limitation can be used to shelter these violations. As in Ciaccia and Hurley the paramount concern is the integrity of the system. The merit and fitness requirements may not be circumvented by reviving and extending an eligible list, after its expiration, but likewise, neither may the timely assertion of violations of the merit and fitness requirements be cavalierly set aside. In this case, as in Ciaccia and Hurley, it is the constituional mandates that must prevail.

Our holding today is not inconsistent with either Ciaccia or Hurley. In those cases the legislative action was taken after the expiration of the lists and in derogation of the constitutional mandates. In neither case was any formal corrective action being sought to remedy errors which diluted merit and fitness determinations. In contrast the plaintiffs here promptly commenced this proceeding immediately upon the promulgation and certification of the "final” list and prior to the expiration of the list, seeking corrective measures necessary to sustain the constitutional standards. Indeed Ciaccia and Hurley support the principle that constitutional concerns are paramount, a principle which is sustained by our decision today.

The cross appeal of petitioners is dismissed since they were not aggrieved by the Appellate Division modification, nor were they favored by a dissent (CPLR 5601).

Chief Judge Breitel

(dissenting in part). I cannot agree with the novel proposition, supported neither by statute, case law, nor sound policy, that the period during which errors in an eligible list remain uncorrected extends the duration of the list. Section 56 of the Civil Service Law imposes a four-year maximum on eligible lists, and, once that period has expired, a court may not order appointment from the list. Nor can the court approve a proposed stipulation of settlement to appoint from an expired list when the very party to make the appointment never agreed to the aborted stipulation. I therefore vote to reverse the order of the Appellate Division and dismiss the petition. I concur, however, that the cross appeal by petitioner should be dismissed.

Without question, prior to expiration of an eligible list, the life of the list may be extended up to the statutory four-year period (Matter of Roske v Keyes, 46 AD2d 366, 368; Uniformed Fireman’s Benevolent Assn. v Herten, 23 AD2d 788, 789). Extension beyond the four-year maximum is also permissible, but then express statutory authority is essential (see Ciaccia v Board of Educ., 271 NY 336, 339; Brown v Craig, 209 App Div 11, 13-14; Matter of Woods v Finegan, 246 App Div 271, 273). Once a list has expired, however, even the Legislature is, under the Constitution, powerless to revive it (Ciaccia v Board of Educ., 271 NY 336, 339, supra; Hurley v Board of Educ., 270 NY 275, 279-280; see NY Const, art V, § 6).

Thus, appointment from an expired eligible list has been forbidden. In Matter of Cash v Bates (301 NY 258, 261), despite expiration of the applicable list, would-be appointees demanded both removal of incumbents and their own appointment. Although expiration of the list did not preclude removal of the previous appointments for illegality, appointment of the petitioners would be, it was held, a "legal impossibility” (id.; but see Matter of Simon v Kennedy, 5 Misc 2d 17, 18, and unreported cases cited).

In Matter of Singer v Schechter (17 AD2d 204, 205-206), relied upon by petitioners, the proceeding, unlike that in Cash v Bates, was brought before the list had expired. Nevertheless, in remanding for a hearing, the Appellate Division did not pass on the type of relief to which the petitioners there would be entitled. In fact, the court cited Cash v Bates (supra) and expressed doubt about the legal possibility of ordering appointments after expiration of the list (17 AD2d, pp 205-206).

The eligible list for promotions to transit police captain from which petitioners seek certification was established in December, 1971. By statutory mandate, it was due to and did expire, after four years, in December, 1975. It has already been held, as noted, that the Legislature may not revive an expired list. So, too, there is no power in the court to direct certification of petitioners from a list expired, at least without statutory or limited judicial extension of the list before its expiration.

No support is offered, and none is perceived, for the view taken by the majority that the four-year period does not begin to run until errors on the list are corrected. Indeed, such reasoning ignores the constitutional underpinnings for safeguarding the durational limitations imposed on eligible lists. Lists become stale, and, with the passage of time, their value for implementing the constitutional mandate, that they promote selection on merit and fitness, diminishes (see, e.g., Hurley v Board of Educ., 270 NY 275, 280, supra). In the Hurley case, it was said by Judge Lehman (p 280): "A competitive examination may demonstrate merit and fitness, at the time of the examination. As time passes, its value as a test of merit and fitness diminishes. Others may, then, be better prepared and more fit to fill a position than those who are upon the list”. An uncorrected eligible list becomes stale as quickly as a list deriving from a perfectly graded examination.

Of course in the Ciaccia and Hurley cases the paramount concern was integrity of the civil service system. The fact that efforts by the Legislature to extend expired lists have been held unconstitutional makes all the stronger the precedents for over a generation which forbid appointments from an expired list whether by judicial or administrative fiat. Moreover, there is a time-honored remedy for maintaining the integrity of the constitutionally mandated merit system. The remedy is not appointment from stale lists, but removal of persons illegally appointed (Matter of Cash v Bates, 301 NY 258, 261-262, supra; Matter of Singer v Schechter, 17 AD2d 204, 205-206, supra). Beyond that, despite assertions to the contrary, errors in grading an examination and in the resultant rankings on an eligible list do not involve the "integrity” of the system. If they were thought to, then all errors and irregularities, inevitable in the conduct of human affairs, would permit appointment from expired lists, a thesis consistently rejected until today.

Nor does delay in correcting petitioners’ placement on the eligible list amount, as is suggested, to a continuing wrong. That concept, frequently raised to answer a Statute of Limitations defense, relates, in the area of civil service appointments, to persisting refusal or failure to comply with the merit and fitness requirements of section 6 of article V of the Constitution (see, e.g., Matter of Grossman v Rankin, 43 NY2d 493, 506; Matter of Cash v Bates, 301 NY 258, 261, supra). The illegality involved must be related not only to past events, but must continue into the present, and if uncorrected, persist into the future. Were failure to rectify discrete grading errors a continuing wrong warranting extension of the expiration date of the list, the statute-mandated four-year maximum would have little, if any, meaning.

It has been said that parties, during the life of an eligible list, should be free to stipulate to extended eligibility. It is argued that such a practice is prevalent and far more efficient than enjoining promulgation of a list, or enjoining certification or permanent appointment from a list, pending resolution of a challenge. Even were such a stipulation proper, as it may well be, in this case no stipulation was reached. That a proposed stipulation was circulated by counsel does not alter the fact that the Transit Authority, the agency to make the appointment, never agreed to extend the list for petitioners.

The 1971 eligible list, established so many years ago, and ' before the city’s and the Transit Authority’s fiscal crises with the consequent severe retrenchments which still continue, is stale indeed. The authority and the public are entitled to an eligible list which is contemporary in selection on merit and fitness for the few and important positions of transit police captain, if improvement in this important branch of the civil service is to remain the goal.

Accordingly, I vote to reverse the order of the Appellate Division and dismiss the petition.

Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur in memorandum; Chief Judge Breitel dissents in part and on respondents’ appeal votes to reverse and dismiss the petition in a separate opinion in which Judges Jasen and Jones concur.

On respondents’ appeal: Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.

On petitioners’ cross appeal: Cross appeal dismissed, without costs. 
      
       It should be noted that in the context of this case we are here dealing only with the effect of section 56 of the Civil Service Law and not with Statute of Limitations questions.
     