Matter of Graziano v County of Albany

2004 NYSlipOp 08036

November 10, 2004

Appellate Division, Third Department

In the Matter of John A. Graziano, as Election Commissioner of the County of Albany and as Member of the Board of Elections of the County of Albany, Appellant, v County of Albany et al., Respondents.

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Mugglin, J. Appeal from a decision of the Supreme Court, Albany County (Benza, J.), dated December 19, 2003, which denied petitioner's application for counsel fees.

Supreme Court awarded petitioner counsel fees in the underlying proceeding (see Public Officers Law § 18 [3] [b]) but, by letter decision, declined to award additional counsel fees to petitioner for this private counsel's work in defending the appeal (see Matter of Graziano v County of Albany, 309 AD2d 1062, 1063 [2003], lv granted 1 NY3d 507 [2004]). As Supreme Court's letter decision contains no language that it is either a judgment or order of the court and since no order was entered thereon (see CPLR 5512 [a]), this Court lacks jurisdiction and the appeal must be dismissed (see Citibank [South Dakota] v Morrissey, 276 AD2d 963, 963 [2000]).

Crew III, J.P., Peters, Rose and Lahtinen, JJ., concur. [*2]Ordered that the appeal is dismissed, without costs.