| Matter of Alessio v Carey |
| 2008 NY Slip Op 00352 [47 AD3d 1194] |
| January 18, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of George P. Alessio, Jr., Respondent, v Paul G.Carey, Appellant, and Helen M. Kiggins et al., Respondents. (Appeal No.1.) |
—[*1] Cote, Limpert & Van Dyke, LLP, Syracuse (Joseph S. Cote, III, of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.),entered December 14, 2007 in a proceeding pursuant to Election Law article 16. The ordergranted the petition in part and directed respondent Onondaga County Board of Elections tocount three absentee ballots cast in petitioner's favor for the office of Town Justice in the Townof Salina.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion to dismiss the petition is granted and the petition is dismissed.
Memorandum: In appeal No. 1, Paul G. Carey (respondent) appeals from an order grantingthe petition in part and directing respondent Onondaga County Board of Elections (Board) tocount three absentee ballots cast in petitioner's favor in the November 6, 2007 general electionfor the office of town justice in the Town of Salina. The Board had invalidated those ballots and,pursuant to the relief granted by Supreme Court, petitioner gained a one-vote margin. In appealNo. 2, respondent appeals from an order denying his motion to reopen the hearing on the petitionto enable the court to consider new evidence with respect to three affidavit ballots cast in theelection that also allegedly had been invalidated by the Board. In appeal No. 3, respondentappeals from an order that, inter alia, denied his motion to dismiss the petition for lack of subjectmatter jurisdiction.
The courts lack subject matter jurisdiction in election cases to conduct a canvass of ballotsand to determine the winner of an election before the Board of Elections has performed itsstatutory duties pursuant to Election Law §§ 9-210 and 9-212 by conducting itsofficial canvass, filing the requisite tabulated statements, and determining the person elected(see Testa v Ravitz, 84 NY2d 893, 895 [1994]; Matter of Larsen v Canary, 107AD2d 809, 810-811 [1985], affd 65 NY2d 634 [1985]). Here, the petition alleged merelythat the Board "will determine" that respondent would be the [*2]winner in the election and that any statement by the Boardregarding the election was "to be made" in the future. Further, an affidavit submitted in supportof the petition asserted that the "unofficial results" of the vote counting by the Board "appeared togive" respondent a lead.
Because the Board had not completed the performance of its statutory duties pursuant toElection Law §§ 9-210 and 9-212 prior to the filing of the petition, we conclude thatthe court lacked subject matter jurisdiction with respect to the petition. We therefore reverse theorder in appeal No. 1 and grant respondent's motion to dismiss the petition. In view thereof, wedismiss as moot the appeal from the order in appeal No. 2 denying respondent's motion to reopenthe hearing, and we dismiss the appeal from the order in appeal No. 3 inasmuch as that order wassubsumed in the final order in appeal No. 1 (see Hughes v Nussbaumer, Clarke & Velzy,140 AD2d 988 [1988]; Chase Manhattan Bank, N.A. v Roberts & Roberts, 63 AD2d566, 567 [1978]; see also CPLR 5501 [a] [1]). We note, however, that "[e]ither candidatemay, if so advised, commence a proceeding as to that canvass after the [B]oard has made itsdetermination" (Larsen, 107 AD2d at 811). Present—Scudder, P.J., Hurlbutt,Lunn, Green and Gorski, JJ. [See 18 Misc 3d 1102(A), 2007 NY Slip Op 52381(U)(2007).]