Matter of Davis v. Czarny , 153 A.D.3d 1556 ( 2017 )

Matter of Davis v Czarny (2017 NY Slip Op 06409)

Matter of Davis v Czarny

2017 NY Slip Op 06409

Decided on September 6, 2017

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 6, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

964.2 CAE 17-01525

[*1]IN THE MATTER OF ALFONSO DAVIS AND ANNE WILLIAMS, PETITIONERS-APPELLANTS,

v

DUSTIN CZARNY AND MICHELE SARDO, AS COMMISSIONERS OF BOARD OF ELECTIONS, RESPONDENTS-RESPONDENTS. HEIDI TESKA, RESPONDENT.

I. AURORA FLORES, SYRACUSE, FOR PETITIONERS-APPELLANTS.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (BENJAMIN M. YAUS OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

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 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; see Matter of Gadsen v Board of Elections of City of N.Y., 57 NY2d 751, 752; Matter of Wein v Molinari, 51 NY2d 717, 718-719). Although petitioners contend that the court erred in failing to "weigh[ ] 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), 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, lv denied 24 NY3d 901).

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

Entered: September 6, 2017

Frances E. Cafarell

Clerk of the Court