Opinion
January 22, 1982
Appeal from the Supreme Court, Erie County, McGowan, J.
Present — Simons, J.P., Hancock, Jr., Callahan, Denman and Moule, JJ.
Appeal unanimously dismissed, without costs. Memorandum: Petitioner was hired as assistant director of intervenor-appellant, Housing Opportunities Made Equal, Inc., a nonprofit agency having a contract with the City of Buffalo and funded by the city primarily through Federal Community Development Block grants. A term in the contract between the city and the agency requires that staff vacancies be filled with city residents. The contract makes provision, however, for a waiver of the residency requirement in the sole discretion of respondent commissioner. Petitioner appeals from a dismissal without prejudice and without an evidentiary hearing of his CPLR article 78 proceeding in which he asserts a claim of impermissible discriminatory enforcement of the contractual residency requirement. This appeal from a nonfinal order in a CPLR article 78 proceeding does not lie as of right; nor has permission to appeal been sought or granted. We therefore dismiss the appeal (see CPLR 5701, subd [b], par 1; Matter of Wallace v. Wyandanch Union Free School Dist., 58 A.D.2d 813; Cirasole v. Simins, 48 A.D.2d 795; Hawley v. Town of Aurora, 41 A.D.2d 588). Had we reached the merits of this appeal we would have affirmed Special Term's dismissal without prejudice; petitioner has not presented sworn affidavits or other proof supplying factual detail showing that he is more likely than not to succeed on the merits (see Matter of 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 695-696).