| Aprea v New York State Bd. of Elections |
| 2013 NY Slip Op 01306 [103 AD3d 1059] |
| February 28, 2013 |
| Appellate Division, Third Department |
| Gerard Aprea et al., Appellants, v New York State Board ofElections, Respondent. |
—[*1] John Vidurek, Hyde Park, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Teresi, J.), entered March15, 2012 in Albany County, which, among other things, sua sponte dismissed thecomplaint.
In 2010, plaintiff Gerard Aprea submitted a Republican party designating petition forthe position of "Committeeman" with the Greene County Board of Elections, whichadvised him that there were no vacancies on the county Republican committee. Aprearesponded that his petition did not seek a position on the county committee or a townposition, but sought the separate "elective office" of "Committeeman." Also in 2010,plaintiff John Vidurek filed a Republican party designating petition with the DutchessCounty Board of Elections listing the position as "Committeeman." He was notified thatthe petition was filed, but was later notified that the petition was void because committeemembers were not being elected in the 2010 primary election. In 2011, Vidurek againfiled a designating petition for the position of "Committeeman" and was notified that apetition was filed designating him for the office of county committee. He notified theDutchess County Board of Elections that his petition was not for a position as member ofthe county committee or town committee, but for the position of "Committeeman."
Plaintiffs commenced this action seeking, among other things, a declaratoryjudgment [*2]ordering defendant to acknowledge thatplaintiffs were duly elected committeemen because they had filed uncontested petitionsfor that office (see NY Const, art I, § 1; Election Law § 6-160 [2]).Plaintiffs moved for a default judgment against defendant, which had failed to serve ananswer.[FN*]Defendant moved to vacate its default. Supreme Court dismissed the complaint suasponte, finding that it failed to state any viable cause of action, and denied defendant'smotion as moot. Plaintiffs appeal.
Initially, plaintiffs have never clearly explained what committee they seek to be apart of in the position of "Committeeman." Pursuant to Election Law article 2, "[p]artycommittees shall consist of a state committee, county committees, and such othercommittees as the rules of the party may allow" (Election Law § 2-100; seegenerally Election Law art 2). Plaintiffs informed their respective county boards ofelections that they were not seeking a position on the town or county committee, but theyhave never stated that they seek a position on the state committee. Because plaintiffshave not established that the law creates a separate position of "Committeeman," we areunable to grant a judgment declaring that plaintiffs have been elected as"Committeemen" on some amorphous and undescribed committee.
Supreme Court properly dismissed the complaint. Even where a defendant hasdefaulted, a plaintiff is only entitled to a default judgment if the complaint states a viablecause of action (see Walley vLeatherstocking Healthcare, LLC, 79 AD3d 1236, 1238 [2010]). If, despiteaccepting the allegations as true, no viable cause of action is stated, "the court may suasponte dismiss a plaintiff's complaint upon his or her motion for a default judgment"(id. at 1238; seeMartocci v Bowaskie Ice House, LLC, 31 AD3d 1021, 1022 [2006], lvdismissed 7 NY3d 916 [2006], cert denied 552 US 918 [2007]). Thecomplaint here contained five causes of action, none of which is viable.
Contrary to plaintiffs' argument, neither the State and Federal Constitutions nor theoaths of office taken by defendant's commissioners created an enforceable contractbetween plaintiffs and defendant (see Pennsylvania R.R. Co. v State of NewYork, 11 NY2d 504, 511 [1962]; Roman Catholic Diocese of Albany, N.Y. v New York StateWorkers' Compensation Bd., 96 AD3d 1288, 1289 [2012]). Thus, the breach ofcontract cause of action was not viable. The constructive fraud and breach of fiduciaryduty causes of action also were not viable because plaintiffs did not allege or prove thattheir relationship with defendant was unique or distinct as compared to the relationshipthat this institution typically enjoyed with other individuals (see Sears v First Pioneer FarmCredit, ACA, 46 AD3d 1282, 1286 [2007]; Doe v Holy See [State of Vatican City], 17 AD3d 793, 795[2005], lv denied 6 NY3d 707 [2006]). Plaintiffs did not state a negligence causeof action against this governmental defendant because defendant did not owe any specialduty to plaintiffs apart from the duty owed to the general public (see McLean v City of NewYork, 12 NY3d 194, 202-203 [2009]; Signature Health Ctr., LLC v State of New York, 92 AD3d11, 14 [2011], lv denied 19 NY3d 811 [2012]). Conspiracy to commit a tortis not an independent cause of action (see Alexander & Alexander of N.Y. vFritzen, 68 NY2d 968, 969 [1986]; Wells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1218[2011]). As the complaint contained no viable causes of action, Supreme Court properlydismissed it.[*3]
Mercure, J.P., Spain and Stein, JJ., concur.Ordered that the order is affirmed, without costs.[Prior Case History: 2012 NY SlipOp 30437(U).]
Footnote *: The Dutchess CountyBoard of Elections and Greene County Board of Elections, both originally named asdefendants, were dismissed from the action upon consent of the parties.