Leirer v. Canary

133 A.D.2d 196, 518 N.Y.S.2d 838, 1987 N.Y. App. Div. LEXIS 49702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 19, 1987
• Status: Published

Opinion

In two proceedings to invalidate petitions designating John Andrew Kay, and upon his declination, Joseph R. Caputo, Patrick Leis, Denis R. Hurley, Joseph Snellenburg II, and Marion T. Mc-Nulty as candidates in the Conservative Party primary election to beheld on September 15, 1987, for the public offices of Suffolk County Executive, County Court Judge, County Court Judge, Family Court Judge and Family Court Judge, respectively, the appeal is from (1) a judgment of the Supreme Court, Suffolk County (Gerard, J.), entered July 13, 1987, which dismissed the first proceeding as premature and (2) a judgment of the same court, dated August 13, 1987, which dismissed the second proceeding.

Ordered that the judgments are affirmed, without costs or disbursements.

The first proceeding was properly dismissed as premature. Further, we agree with the finding of the Supreme Court that the petitioners’ failure to exercise due diligence to timely serve and join the candidate for Suffolk County Executive substituted by the Committee on Vacancies as a necessary party after the commencement of the second proceeding requires dismissal of that proceeding (see generally, Matter of Berman v Board of Elections, 68 NY2d 761).

The petitioners’ contention that the designating petition was permeated with fraud, a claim rejected by the Supreme Court, cannot be reviewed on this appeal in the absence of the hearing record. We have reviewed the petitioners’ remaining contentions and find them to be without merit. Brown, J. P., Weinstein, Eiber and Hooper, JJ., concur.