Opinion
Argued February 9, 1993
Decided March 25, 1993
Appeal from the Supreme Court, Suffolk County, William L. Underwood, Jr., J., John J.J. Jones, J.
Robert J. Cimino, County Attorney of Suffolk County, Hauppauge (Joyce D. Long and Arlene S. Zwilling of counsel), for appellants.
Cartier, Hogan, Sullivan, Bernstein Auerbach, P.C., Patchogue (Kenneth A. Auerbach and Arthur T. McQuillan of counsel), for respondent.
MEMORANDUM.
The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.
The Appellate Division's inference that the list of eligibles for the position petitioner sought had been exhausted on the critical date is adequately supported by the record. Thus, petitioner was entitled to permanent appointment pursuant to Civil Service Law § 65 (4). Respondent's contentions concerning the constitutionality of the resettled Appellate Division order directing that petitioner be awarded back pay without reduction for compensation earned in other employment after August 2, 1985 (see, Civil Service Law § 77, as amended by L 1985, ch 851, § 2) cannot be considered on this appeal because they were not raised in opposition to petitioner's motion for resettlement.
Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA and SMITH concur.
Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.