| N.Y. App. Div. | May 27, 1976
Appeal from a judgment of the Supreme Court at Special Term, entered June 9, 1975 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul the appointments of respondents Kelleher and Heerdt upon the ground that their appointments were made from an inappropriate list. Subdivision 1 of section 61 of the Civil Service Law provides in pertinent part that: "Appointments and promotions shall be made from the eligible list most nearly appropriate for the position to be filled.” The question posed here is whether the use of the eligible list for the title "Supervising Beverage Control Investigator” was appropriate for use in filling vacancies in the position of "Executive Officer C” since no list existed for that position. Special Term concluded that the determination of the Civil Service Department as to use of the questioned list was neither arbitrary nor capricious nor an abuse of discretion and thus upheld the appointments. We agree. The qualifications for the two positions are sufficiently comparable that the Civil Service Department decision cannot be said to lack a rational basis and thus to be violative of the constitutional requirement of merit and fitness or of the Civil Service Law (see Matter of Murray v McNamara, 303 NY 140; Matter of Forman v Kern, 257 App Div 946, affd 282 NY 583). As noted by Special Term, Matter of Krapp v Kern (255 App Div 305, affd 281 NY 617) is factually inapposite here. Judgment affirmed, without costs. Greenblott, J. P., Sweeney, Main, Larkin and Reynolds, JJ., concur.