Carro, J. (concurring in result only). After having passed two civil service qualifying examinations for the position of Correction Officer, but nevertheless not being appointed, petitioner brought a discrimination complaint before the Equal Employment Opportunity (EEO) Office of the Department of Correction. In a memorandum of understanding, signed by an EEO attorney of the Department of Correction after obtaining approval from the Department’s Personnel Office, it was *531agreed that petitioner "will be hired for the position of correction officer” and "will go to the Academy”, subject only to "document collection”.
Although petitioner had already passed a medical examination, and although nothing in the memorandum of understanding provided for an additional medical examination as a condition, petitioner was required to undergo a second medical examination pursuant to an unpromulgated, informal practice of the Department. Significantly, the Department had adopted a more stringent standard for minimal hearing requirements after the memorandum of understanding was executed by the parties. Petitioner’s hearing was found deficient under the new standard, and he was rejected for employment solely on that basis.
It is my view that the Supreme Court was correct in concluding that the Department breached it’s contractual obligation to hire petitioner, set forth in the memorandum of understanding, contrary to our State’s policy favoring enforcement of stipulations of settlement (see, Hallock v State of New York, 64 NY2d 224, 230). I do not agree with the majority’s conclusion that the memorandum of understanding was either directly violative, or had as its object the violation of a statute enacted for the protection of the public. The Department had an unpromulgated, informal practice of requiring an applicant to submit to a second medical examination if an earlier examination had taken place over a year prior to an appointment. This practice may indeed have a logical basis, but it was not embodied in a statute or regulation, and thus the Department may reasonably be deemed to have waived that requirement in the memorandum of understanding which did not require another medical examination as a condition for petitioner’s appointment.
I nevertheless concur in the result reached by the majority on the basis of Matter of Deas v Levitt (73 NY2d 525, 529, cert denied — US —, 110 S Ct 324) which holds that appointment of a civil service applicant from an expired list is "a legal impossibility”, violative of our State Constitution. Petitioner concedes that the eligible list herein expired by operation of law in August of 1988, long before entry of the Supreme Court’s January 29, 1990 judgment directing respondents to appoint petitioner as a Correction Officer. Although the respondents did not raise this issue in their pleadings, or during trial except for the "list is dead” comment noted by the majority, an appellant may urge for the first time on appeal a *532proposition of law which appeared on the face of the record, and which could not have been cured or avoided if brought to the attention of the court below (Persky v Bank of Am. Natl. Assn., 261 NY 212, 218-219; De Sapio v Kohlmeyer, 35 NY2d 402, 404, n 2). Since the expiration of the eligible list by operation of law is a fact appearing on the face of the record, and the legal effect of that expiration could not have been cured or avoided by the petitioner, I agree with the majority’s determination that the judgment of the Supreme Court must be reversed, and the determination of the Department reinstated.
Ellerin and Kassal, JJ., concur with Ross, J.; Sullivan, J. P., concurs in a separate opinion; Carro, J., concurs in the result only in a separate opinion. Judgment, Supreme Court, New York County, entered on January 29, 1990, reversed, on the law and on the facts, the judgment vacated and the determination of the Department reinstated, finding petitioner medically not qualified for appointment as a Correction Officer, without costs.