DiMatteo v. Niagara County Board of Elections

Appellate Division of the Supreme Court of New York

DiMatteo v. Niagara County Board of Elections

133 A.D.2d 519, 519 N.Y.S.2d 889, 1987 N.Y. App. Div. LEXIS 49987

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1987

StatusPublished

This text of 133 A.D.2d 519 (DiMatteo v. Niagara County Board of Elections) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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DiMatteo v. Niagara County Board of Elections, 133 A.D.2d 519, 519 N.Y.S.2d 889, 1987 N.Y. App. Div. LEXIS 49987 (N.Y. Ct. App. 1987).

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Opinion

— Order unanimously reversed on the law without costs, in accordance with the following memorandum: Petitioner DiMatteo commenced this proceeding to validate his petitions designating him as a Liberal Party candidate for the office of Niagara County District Attorney. Respondent Snyder failed to answer or appear on the return date, and the court granted an order validating the designating petitions.

Thereafter, by order to show cause respondent Snyder moved for reargument. The court granted an order permitting reargument and adhered to its prior ruling validating the designating petitions. This appeal is from that part of the court’s order which, on reargument, validated the designating petitions. He requests this court to reverse and grant an order invalidating the petitions.

Snyder is not entitled to the relief he seeks because the court should not have granted his motion for reargument. Since respondent Snyder neither answered nor appeared in opposition to the petition, the order as to him was granted on default, and his proper remedy was to move to open the default. The motion for reargument cannot be treated as one to open the default because his motion papers contain no excuse for his failure to appear or answer. Because it was improperly granted, we reverse the order appealed from and dismiss respondent Snyder’s motion, leaving the prior order in full force and effect. (Appeal from order of Supreme Court, Niagara County, Doyle, J. — Election Law.) Present — Doerr, J. P., Denman, Boomer, Balio and Davis, JJ. (Order entered Aug. 21, 1987.)

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— Order unanimously reversed on the law without costs, in accordance with the following memorandum: Petitioner DiMatteo commenced this proceeding to validate his petitions designating him as a Liberal Party candidate for the office of Niagara County District Attorney. Respondent Snyder failed to answer or appear on the return date, and the court granted an order validating the designating petitions.

Thereafter, by order to show cause respondent Snyder moved for reargument. The court granted an order permitting reargument and adhered to its prior ruling validating the designating petitions. This appeal is from that part of the court’s order which, on reargument, validated the designating petitions. He requests this court to reverse and grant an order invalidating the petitions.

Snyder is not entitled to the relief he seeks because the court should not have granted his motion for reargument. Since respondent Snyder neither answered nor appeared in opposition to the petition, the order as to him was granted on default, and his proper remedy was to move to open the default. The motion for reargument cannot be treated as one to open the default because his motion papers contain no excuse for his failure to appear or answer. Because it was improperly granted, we reverse the order appealed from and dismiss respondent Snyder’s motion, leaving the prior order in full force and effect. (Appeal from order of Supreme Court, Niagara County, Doyle, J. — Election Law.) Present — Doerr, J. P., Denman, Boomer, Balio and Davis, JJ. (Order entered Aug. 21, 1987.)

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Bluebook (online)

133 A.D.2d 519, 519 N.Y.S.2d 889, 1987 N.Y. App. Div. LEXIS 49987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimatteo-v-niagara-county-board-of-elections-nyappdiv-1987.