Murray v. Lord

46 A.D.2d 721, 361 N.Y.S.2d 96, 1974 N.Y. App. Div. LEXIS 3938

Opinion

Judgment unanimously affirmed, without costs. Memorandum: We concur in Special Term’s dismissal of the petition “ upon the ground that the proceeding is time barred ” (Matter of Novak v. Nash, 40 A D 2d 728, affd. 31 N Y 2d 710; Matter of Van Lengen v. Balabanian, 26 A D 2d 622, affd. 17 N Y 2d 920). Petitioner seeks to secure a subdivision (2) of section 330 of the Election Law determination by the use of an article 78 proceeding. The Court of Appeals has expressly stated that article 78 may not be used as a substitute for section 330 of the Election Law after that section’s time limitation has expired, as is the case in the instant proceeding. This principle was sueeintly stated in the following statement from Matter of Mansfield v. Epstein (5 N Y 2d 70; 74): “ There is no question that the Supreme Court has summary jurisdiction of proceedings brought under section 330 of the Election Law, but in election cases a court may only exercise the powers granted to it within the framework of the procedures prescribed by the statute. Under these circumstances, Special Term, having no proceeding before it brought pursuant to section 330 of the Election Law, was powerless to initiate a proceeding or treat the article 78 proceeding as such after the expiration of the limitation period.” Although not legally determinative of the issue before us, we note that the Special Term determination has the merit of not disenfranchising the voters who east their ballots for the slate of delegates who unanimously nominated respondent Staley. (Appeal from judgment of Albany Special Term in article 78 proceeding to invalidate nomination, transferred from Appellate Division, Third Judicial Department.) Present—Marsh, P. J., Witmer, Cardamone, Goldman, Del Vecehio, JJ. (Order entered October 14, 1974.)