Fletcher v. Barkr

Appellate Division of the Supreme Court of New York

Fletcher v. Barkr

196 A.D.2d 611, 601 N.Y.S.2d 866, 1993 N.Y. App. Div. LEXIS 8152

Appellate Division of the Supreme Court of the State of New York·Decided August 18, 1993·Published·Cited by 1 cases

Opinion

In a proceeding to invalidate a petition designating Atchudta Barkr as a candidate in a primary election to be held on September 14, 1993, for nomination of the Democratic Party as its candidate for the public office of Member of the New York City Council from the 41st Council District, the appeal is from a judgment of the Supreme Court, Kings [612] County (Garry, J.), dated August 11, 1993, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The appellant contends that the trial court erred by refusing to admit evidence of fraud without a prior written offer of proof having been filed by August 2, 1993, as specified in Justice William Garry’s Rules for the Special Election Part of the Supreme Court, Kings County. We find the appellant’s argument to be without merit, since the above-noted rules clearly state that "A written offer of proof in all maters [sic] alleging a question of fraud * * * shall be filed with the Clerk of the Part no later than 10 a.m., Monday, August 2, 1993”.

The appellants’ allegation that those rules were invalid because they were not approved by appropriate authorities is unpreserved for appellate review, as they never raised this claim before the Supreme Court, Kings County (see, Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448; Fresh Pond Fid. Assocs. v Estate of Schacht, 120 AD2d 561). Sullivan, J. P., Eiber, O’Brien and Joy, JJ., concur.

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In a proceeding to invalidate a petition designating Atchudta Barkr as a candidate in a primary election to be held on September 14, 1993, for nomination of the Democratic Party as its candidate for the public office of Member of the New York City Council from the 41st Council District, the appeal is from a judgment of the Supreme Court, Kings [612] County (Garry, J.), dated August 11, 1993, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The appellant contends that the trial court erred by refusing to admit evidence of fraud without a prior written offer of proof having been filed by August 2, 1993, as specified in Justice William Garry’s Rules for the Special Election Part of the Supreme Court, Kings County. We find the appellant’s argument to be without merit, since the above-noted rules clearly state that "A written offer of proof in all maters [sic] alleging a question of fraud * * * shall be filed with the Clerk of the Part no later than 10 a.m., Monday, August 2, 1993”.

The appellants’ allegation that those rules were invalid because they were not approved by appropriate authorities is unpreserved for appellate review, as they never raised this claim before the Supreme Court, Kings County (see, Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448; Fresh Pond Fid. Assocs. v Estate of Schacht, 120 AD2d 561). Sullivan, J. P., Eiber, O’Brien and Joy, JJ., concur.

Fletcher v. Barkr, 196 A.D.2d 611, 601 N.Y.S.2d 866, 1993 N.Y. App. Div. LEXIS 8152 (N.Y. Ct. App. 1993).

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Opinion

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