O'Connor v. Stahl , 760 N.Y.S.2d 344 ( 2003 )

—In a proceeding pursuant to CPLR article 78, inter alia, to compel the Town Board of the Town of Carmel to promote the petitioner to the position of detective in the Police Department of the Town of Carmel, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Putnam County (Nicolai, J.), dated May 23, 2002, which denied his motion pursuant to CPLR 408 for leave to take examinations before trial, denied the petition, and dismissed the proceeding.

Ordered that the order and judgment is affirmed, with costs.

The petition alleges, in relevant part, that on October 10, 2001, the respondent members of the respondent Town Board of the Town of Carmel (hereinafter the Town Board) unanimously voted to approve the petitioner’s appointment to the position of detective in the police department, and that on October 11, 2001, the individual respondents unlawfully withdrew their votes. However, it is undisputed that the Town Board took no formal action on October 10, 2001. The petitioner’s evidence confirms that the Town Board took only a “straw vote” on that day. Under these circumstances, the Supreme Court properly denied the petitioner’s motion for leave to take examinations before trial, denied the petition, and dismissed the proceeding on the ground that the petition fails to state a cause of action (see CPLR 408; Matter of Lonray, Inc. v Newhouse, 229 AD2d 440, 440-441 [1996]). Santucci, J.P., Krausman, Schmidt and Townes, JJ., concur.