OPINION OF THE COURT

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 NY 258, 261; Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 44 NY2d 907, decided herewith; cf. Matter of Mena v DAmbrose, 44 NY2d 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 AD2d 787, affd 44 NY2d 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.