MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs. Petitioner did not commence this article 78 proceeding seeking appointment until after the subject list of eligibles had expired. Accordingly, the courts may grant him neither appointment from that expired list (Matter of Cash v Bates, 301 N.Y. 258, 261; Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 44 N.Y.2d 907, decided herewith; cf. Matter of Mena v D'Ambrose, 44 N.Y.2d 428), nor the equivalent relief he now seeks of retroactive seniority in his subsequently obtained civil service position (cf. Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 58 A.D.2d 787, affd 44 N.Y.2d 907, decided herewith). We express no view as to what would be the proper result had petitioner instead commenced a proceeding prior to the expiration of the list and that proceeding had been dismissed for a failure to exhaust his administrative remedies.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.