Matter of Davis v. Czarny

Appellate Division of the Supreme Court of New York

Matter of Davis v. Czarny

2017 NY Slip Op 6409, 153 A.D.3d 1556, 60 N.Y.S.3d 626

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

DecidedSeptember 6, 2017

Docket964.2 CAE 17-01525

StatusPublished

Cited by3 cases

This text of 2017 NY Slip Op 6409 (Matter of Davis v. Czarny) 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.

Bluebook

Matter of Davis v. Czarny, 2017 NY Slip Op 6409, 153 A.D.3d 1556, 60 N.Y.S.3d 626 (N.Y. Ct. App. 2017).

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Opinion

Appeal from a judgment of the Supreme Court, Onondaga County (Norman W. Seiter, Jr., J.), entered August 18, 2017 in a proceeding pursuant to Election Law article 16. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners appeal from a judgment dismissing their petition in this proceeding pursuant to Election Law *1557 article 16 seeking to nullify respondents’ determination invalidating their designations as candidates in the Democratic primary election for the offices of Mayor of the City of Syracuse and Commissioner of Education of the City of Syracuse. Contrary to petitioners’ contention, Supreme Court properly dismissed the petition based on their failure to name and serve a necessary party, i.e., the objector to petitioners’joint designating petition. It is undisputed that petitioners received adequate and timely notice of the objector’s identity, and “thus [their] failure to name the objector as a party renders this proceeding defective” (Matter of Plochocki v Onondaga County Bd. of Elections, 21 AD3d 710, 710 [2005]; see Matter of Gadsen v Board of Elections of City of N.Y., 57 NY2d 751, 752 [1982]; Matter of Wein v Molinari, 51 NY2d 717, 718-719 [1980]). Although petitioners contend that the court erred in failing to “weight ] the statutory factors set forth in CPLR 1001 (b) to determine whether [they] should be permitted to proceed in the absence of [the objector]” (see generally Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452, 457-458 [2005]), that specific contention is raised for the first time on appeal, and we therefore do not consider it (see Matter of Vescera v Stewart, 120 AD3d 990, 992 [2014], lv denied 24 NY3d 901 [2014]).

In view of our determination, we do not address petitioners’ remaining contentions.

Present — Whalen, P.J., Smith, Centra and Lindley, JJ.

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Appeal from a judgment of the Supreme Court, Onondaga County (Norman W. Seiter, Jr., J.), entered August 18, 2017 in a proceeding pursuant to Election Law article 16. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners appeal from a judgment dismissing their petition in this proceeding pursuant to Election Law *1557 article 16 seeking to nullify respondents’ determination invalidating their designations as candidates in the Democratic primary election for the offices of Mayor of the City of Syracuse and Commissioner of Education of the City of Syracuse. Contrary to petitioners’ contention, Supreme Court properly dismissed the petition based on their failure to name and serve a necessary party, i.e., the objector to petitioners’joint designating petition. It is undisputed that petitioners received adequate and timely notice of the objector’s identity, and “thus [their] failure to name the objector as a party renders this proceeding defective” (Matter of Plochocki v Onondaga County Bd. of Elections, 21 AD3d 710, 710 [2005]; see Matter of Gadsen v Board of Elections of City of N.Y., 57 NY2d 751, 752 [1982]; Matter of Wein v Molinari, 51 NY2d 717, 718-719 [1980]). Although petitioners contend that the court erred in failing to “weight ] the statutory factors set forth in CPLR 1001 (b) to determine whether [they] should be permitted to proceed in the absence of [the objector]” (see generally Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452, 457-458 [2005]), that specific contention is raised for the first time on appeal, and we therefore do not consider it (see Matter of Vescera v Stewart, 120 AD3d 990, 992 [2014], lv denied 24 NY3d 901 [2014]).

In view of our determination, we do not address petitioners’ remaining contentions.

Present — Whalen, P.J., Smith, Centra and Lindley, JJ.

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2017 NY Slip Op 6409, 153 A.D.3d 1556, 60 N.Y.S.3d 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-davis-v-czarny-nyappdiv-2017.

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