FRASCATI, JAMES v. THE IRONDEQUOIT NIGHTSTICK CLUB INC ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1145
CA 12-00632
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
IN THE MATTER OF JAMES FRASCATI,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
IRONDEQUOIT NIGHTSTICK CLUB, INC. AND
MICHAEL A. DIGIOVANNI, PRESIDENT OF
IRONDEQUOIT NIGHTSTICK CLUB, INC.,
RESPONDENTS-RESPONDENTS.
CHAMBERLAIN D’AMANDA OPPENHEIMER & GREENFIELD, LLP, ROCHESTER (MATTHEW
J. FUSCO OF COUNSEL), FOR PETITIONER-APPELLANT.
TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (LAWRENCE J. ANDOLINA
OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Thomas M. Van Strydonck, J.), entered January 25, 2012
in a proceeding pursuant to CPLR article 78. The judgment dismissed
the petition.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: Petitioner commenced this proceeding pursuant to
CPLR article 78 seeking to set aside the November 3, 2011 election of
the president of respondent The Irondequoit Nightstick Club, Inc.
(club) on the ground that the election was not held in accordance with
the club’s bylaws. Petitioner also sought a new election for the
position of president of the club. We note at the outset that the
proper vehicle by which to seek a new club election is a proceeding
pursuant to Not-for-Profit Corporation Law § 618, and thus we would in
the usual case convert the cause of action seeking that relief to a
special proceeding pursuant to that statute (see CPLR 103 [c]).
However, because the club’s next annual election was held before the
issuance of our decision herein, we conclude that this appeal is moot
(see Matter of Paraskevopoulos v Stavropoulos, 65 AD3d 1153, 1154;
Matter of Karakonstadakis v Kokonas, 173 AD2d 706, 706-707; see
generally Litas Inv. Co. v Vebeliunas, 148 AD2d 680, 682). We further
note that this appeal does not fall within the exception to the
mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707,
-2- 1145
CA 12-00632
714-715).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court