Brown v. Starkweather

Appellate Division of the Supreme Court of New York

Brown v. Starkweather

197 A.D.2d 840, 602 N.Y.S.2d 449, 1993 N.Y. App. Div. LEXIS 9187

Appellate Division of the Supreme Court of the State of New York·Decided October 1, 1993·Published·Cited by 41 cases

Opinion

Cross appeal unanimously dismissed and order affirmed without costs. Memorandum: Supreme Court properly held that petitioner Brown’s proceeding was not timely commenced. Election Law § 16-116 requires delivery of the instrument of notice of the proceeding "not later than on the last day on which the proceeding may be commenced” (Matter of Ehle v Wallace, 195 AD2d 1086). Because the order to show cause and petition were delivered to respondent on the day following the last day on which the proceeding could be commenced, the proceeding was untimely and the petition was properly dismissed.

[841]*841Upon dismissal of Brown’s petition, Supreme Court noted that the issues raised in Heilman’s petition were moot. It therefore properly declined to rule on the substantive issues raised in the Heilman petition.

Finally, we dismiss the cross appeal. Respondents Stark-weather and Relin were not aggrieved by the order appealed from (see, CPLR 5511; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488). (Appeals from Order of Supreme Court, Monroe County, Frazee, J.—Election Law.) Present—Callahan, J. P., Lawton, Fallon, Boomer and Boehm, JJ. (Filed Aug. 20, 1993.)

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Cross appeal unanimously dismissed and order affirmed without costs. Memorandum: Supreme Court properly held that petitioner Brown’s proceeding was not timely commenced. Election Law § 16-116 requires delivery of the instrument of notice of the proceeding "not later than on the last day on which the proceeding may be commenced” (Matter of Ehle v Wallace, 195 AD2d 1086). Because the order to show cause and petition were delivered to respondent on the day following the last day on which the proceeding could be commenced, the proceeding was untimely and the petition was properly dismissed.

[841]*841Upon dismissal of Brown’s petition, Supreme Court noted that the issues raised in Heilman’s petition were moot. It therefore properly declined to rule on the substantive issues raised in the Heilman petition.

Finally, we dismiss the cross appeal. Respondents Stark-weather and Relin were not aggrieved by the order appealed from (see, CPLR 5511; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488). (Appeals from Order of Supreme Court, Monroe County, Frazee, J.—Election Law.) Present—Callahan, J. P., Lawton, Fallon, Boomer and Boehm, JJ. (Filed Aug. 20, 1993.)

Brown v. Starkweather, 197 A.D.2d 840, 602 N.Y.S.2d 449, 1993 N.Y. App. Div. LEXIS 9187 (N.Y. Ct. App. 1993).

Pincite

197 A.D.2d 840 (Brown v. Starkweather) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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