Butler v. Walter

—Order affirmed without costs. Memorandum: No appeal as of right lies from an intermediate order in a CPLR article 78 proceeding (see, CPLR 5701 [b] [1]). We treat the notice of appeal as a request for permission to appeal and grant leave so that we may address the merits (see, CPLR 5701 [c]).

Respondent’s determination that the positions of deputy sheriff sergeant (jail) and lieutenant (jail) within the Onondaga County Sheriff’s Department were, for the purposes of Civil Service Law §81 (1), the same or similar or comparable to positions within the Department of Correction is not supported by the record.

We conclude, therefore, that Supreme Court properly held that respondent’s determination was arbitrary and capricious and without a rational basis.

All concur except Pine, J. P., who dissents and votes to reverse in the following Memorandum.