Cicchelli v. New York State Civil Service Commission , 376 N.Y.S.2d 772 ( 1975 )

— Judgment unanimously affirmed, without costs. Memorandum: Petitioners are Utica police officers who took an examination on April 29, 1972 for promotion to the rank of sergeant. The examination was prepared by the New York State Department of Civil Service pursuant to subdivision 2 of section 23 of the Civil Service Law, but was administered by the Utica Municipal Civil Service Commission. On June 21, 1972 the New York State Department of Civil Service rescinded the examination pursuant to section 25 (subd 1, par [d]) of the Civil Service Law, and ordered it rescheduled on the basis of an investigation which disclosed substantial evidence that the test had been compromised. This action was taken before the examination had been graded. Petitioners commenced a proceeding under article 78 of the CPLR seeking a judgment directing that the examination be graded and that promotion lists be established based upon its results. They urge that the New York State Department of Civil Service failed to comply with subdivision 2 of section 25 of the Civil Service Law and that thus the examination was improperly rescinded. Since the examination was rescinded before it was graded and since no promotion was based upon its results, petitioners were deprived of no substantial right as a result of its invalidation. Consequently, they were not aggrieved persons within the meaning of subdivision 2 of section 25 of the Civil Service Law, and were not in a position to challenge the action of the New York State Department of Civil Service under that section. (Appeal from judgment of Oneida Supreme Court in article 78 proceeding to correct promotional examination.) Present — Marsh, P. J., Moule, Cardamone, Simons and Witmer, JJ.