Opinion
April 15, 1996
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the appeals from the order entered December 6, 1994, and the judgment are dismissed, without costs or disbursements; and it is further,
Ordered that the order entered April 27, 1995, is affirmed insofar as appealed from, without costs or disbursements.
The appeal from the order entered December 6, 1994, is dismissed, because no appeal lies of right from an order entered in a proceeding pursuant to CPLR article 78. Moreover, the appeals from the order entered December 6, 1994, and the judgment must be dismissed because the order entered December 6, 1994, and the judgment were superseded by the order entered April 27, 1995, made upon reargument.
The petitioners, who are employed as school aides in the Yonkers City School District, commenced the instant proceeding pursuant to CPLR article 78 to compel the respondents to cease and desist from assigning them out-of-title work tasks. While we agree with the petitioners that a proceeding pursuant to CPLR article 78 is appropriate in this instance ( see, Matter of O'Reilly v. Grumet, 308 N.Y. 351; Matter of Civil Serv. Empls. Assn. v. Pilgrim Psychiatric Ctr., 204 A.D.2d 444; Matter of Mazzeo v. Incorporated Vil. of E. Hampton, 190 A.D.2d 735; Matter of Sheridan v. Kennedy, 19 Misc.2d 765, affd 10 A.D.2d 606, affd 8 N.Y.2d 794), the Supreme Court correctly concluded that the petitioners were not performing out-of-title work ( see, Matter of Gavigan v. McCoy, 37 N.Y.2d 548; Matter of Fitzpatrick v Ruffo, 110 A.D.2d 1032, affd 66 N.Y.2d 647; Matter of Bartholomew v. Columbia County, 191 A.D.2d 881).
We have examined the parties' remaining contentions and find them to be without merit. Balletta, J.P., Santucci, Krausman and Florio, JJ., concur.