Sullivan, J. P. (concurring). I concur in the majority opinion only to the extent it holds that, in light of petitioner’s failure to meet the Department of Correction’s medical standards, his appointment to the position of Correction Officer on the basis of the May 5, 1986 memorandum of understanding would violate the constitutional requirement of "merit and fitness” (NY Const, art V, § 6). In my view, the claim by respondents, introduced for the first time on appeal, that under Matter of Deas v Levitt (73 NY2d 525, cert denied — US —, 110 S Ct 324) the court is without power to direct petitioner’s appointment because the civil service eligibility list on which his name appeared had expired before entry of the judgment directing said appointment misses the point. Petitioner’s claim is entirely contractual, based on the unequivocal commitment set forth in the memorandum of understanding, which was entered into prior to the expiration of the eligible list. Petitioner was picked and, in effect, appointed from the list on the date of the execution of the memorandum of understanding, thereby rendering the list, as to him, irrelevant. The trial court implicitly recognized this fact when it directed that petitioner’s appointment be retroactive to May 5, ,1986. Thus, in the factual context of this case, the eligibility list’s expiration is of no legal significance.