REED, II, THOMAS W. v. WALSH, JAMES A. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1300.2
CAE 12-01973
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
IN THE MATTER OF THOMAS W. REED, II,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JAMES A. WALSH, ET AL., RESPONDENTS,
AND LORI C. GARDNER, RESPONDENT-APPELLANT.
SCHLATHER, STUMBAR, PARKS & SALK, ITHACA (DIANE V. BRUNS OF COUNSEL),
FOR RESPONDENT-APPELLANT.
JAMES WALSH, BALLSTON SPA, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Supreme Court, Steuben County (Joseph
W. Latham, A.J.), entered August 27, 2012 in a proceeding pursuant to
the Election Law. The order denied the motion of Lori C. Gardner to
vacate an order entered June 21, 2012.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: Petitioner filed a designating petition that
purported to nominate him as the Independence Party’s candidate for
the office of Representative in Congress from the 23rd Congressional
District of New York. After the New York State Board of Elections
(Board) determined that the petition did not contain a sufficient
number of valid signatures, petitioner commenced the instant
proceeding to validate his designating petition. Supreme Court, after
a hearing, granted the petition and ordered the Board to place
petitioner’s name on the ballot for the general congressional election
on the Independence Party line. The court thereafter denied
respondent Lori C. Gardner’s motion to vacate that order, and she now
appeals.
“An ‘appeal will be considered moot unless the rights of the
parties will be directly affected by the determination of the appeal
and the interest of the parties is an immediate consequence of the
judgment’ ” (Wisholek v Douglas, 97 NY2d 740, 742, quoting Matter of
Hearst Corp. v Clyne, 50 NY2d 707, 714). Here, the general election
at issue took place on November 6, 2012, and, in contrast to our
authority to order a new primary election (see Election Law § 16-102
[3]; Matter of Corrigan v Board of Elections of Suffolk County, 38
AD2d 825, 826-827, affd 30 NY2d 603), we lack the authority to “remove
the successful candidate from office or order a new general election”
-2- 1300.2
CAE 12-01973
(Matter of Hanington v Coveney, 62 NY2d 640, 641; see Matter of Conroy
v Levine, 62 NY2d 934, 935; Matter of Uciechowski v Hill, 205 AD2d
825, 825). The appeal is therefore moot, and, inasmuch as the
exception to the mootness doctrine is not implicated here, we dismiss
the appeal (see Hanington, 62 NY2d at 641-642; People ex rel. Geer v
Common Council of Troy, 82 NY 575, 576; Uciechowski, 205 AD2d at 825).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court