Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Boehm, JJ.
Judgment affirmed without costs. Memorandum: Respondent failed to sustain his burden of showing that he gave petitioners notice of a final and binding determination more than four months prior to commencement of this proceeding. Thus, we conclude that this proceeding is timely (see, Nickerson v. City of Jamestown, 178 A.D.2d 1003). The State of New York Department of Civil Service is not a necessary party to this proceeding (see, Matter of Castaways Motel v. Schuyler, 24 N.Y.2d 120, 125). Supreme Court properly ordered respondent to reclassify petitioners (see, Matter of Mandle v. Brown, 5 N.Y.2d 51, 64-65).
All concur, Fallon, J., not participating.