Opinion
July 2, 1970
Order, entered on April 10, 1970, granting plaintiff's motion for a temporary injunction, unanimously reversed, on the law, without costs and without disbursements, motion denied and complaint dismissed. In an article 78 proceeding, brought prior to this action, three candidates were successful in their attempt to compel the commission to allow an alternate answer to one of the multiple choice questions on the promotional examination in suit. No appeal was taken from that determination. The action taken by the commission thereafter in rerating the examination papers of all candidates who took said examination, and who selected the alternate choice, was legal and constituted a proper exercise of its power. (See Matter of Dolan v. Krone, 17 N.Y.2d 912, amending remittitur in 16 N.Y.2d 917; Matter of Abramson v. Commissioner of Educ., 1 A.D.2d 366, 371.) CPLR 6312 (subd. [a]) requires that, on a motion for a preliminary injunction, plaintiff must show "that there is a cause of action, and either that the defendant threatens or is about to do, or is doing * * * an act in violation of the plaintiff's rights respecting the subject of the action * * * or that the plaintiff * * * would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff". Plaintiff has not satisfied any of these requirements. In addition to failing to show irreparable injury ( McGillicuddy v. Monaghan, 280 App. Div. 144), the complaint fails to indicate any impropriety on defendants' part and is, accordingly legally insufficient. This court possesses the power to dismiss the complaint. ( De Rosa v. Slattery Contr. Co., 14 A.D.2d 278, 281.)
Concur — Eager, J.P., Capozzoli, Steuer and Tilzer, JJ.