Matter of Francis v. Prusinski , 39 N.Y.S.3d 294 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 522332
________________________________
In the Matter of TIFFANY
FRANCIS et al.,
Petitioners,
v
ANN PRUSINSKI et al., as MEMORANDUM AND ORDER
Commissioners of the
Sullivan County Board of
Elections, et al.,
Respondents,
and
SHALOM LAMM et al.,
Appellants.
________________________________
Calendar Date: September 8, 2016
Before: Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.
__________
Harris Beach PLLC, Uniondale (Jared A. Kasschau of
counsel), for appellants.
__________
Rose, J.
Appeal from an order of the Supreme Court (Schick, J.),
entered May 12, 2015 in Sullivan County, which, in a proceeding
pursuant to Election Law §§ 15-138 and 16-106, among other
things, denied certain respondents' cross motion for summary
judgment dismissing the petition.
In anticipation of a special election, petitioners
commenced this proceeding pursuant to Election Law §§ 15-138 and
16-106 seeking, among other things, a determination regarding the
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validity of ballots cast by voters who were subject to
postregistration challenges. Following the election, certain of
the challenged voters – many of whom had successfully moved to
intervene in this proceeding (hereinafter collectively referred
to as intervenor respondents) – commenced a separate CPLR article
78 proceeding to, among other things, annul the determination by
the Sullivan County Board of Elections to sustain nearly all of
the postregistration challenges. In that proceeding, Supreme
Court ordered the Board to cast and canvas the subject ballots,
and the election was thereafter certified.
Petitioners then moved in this proceeding for an order
declaring the election void and directing that a new election be
held. Intervenor respondents cross-moved for, among other
things, summary judgment dismissing the petition on the basis of
lack of standing and subject matter jurisdiction. In the
meantime, the Board determined that the challenged voters were
not entitled to vote in any future election. A second CPLR
article 78 proceeding seeking to annul the Board's determination
was then commenced and ultimately transferred to this Court.
Thereafter, Supreme Court denied both petitioners' motion and
intervenor respondents' cross motion as premature and gave the
parties leave to renew their motions once this Court resolved the
second CPLR article 78 proceeding. This appeal by intervenor
respondents ensued.
The order appealed from does not affect a substantial right
of intervenor respondents, as it merely deferred a decision on
the merits of their motion until the second CPLR article 78
proceeding is resolved and they return to Supreme Court.
Accordingly, the order is not appealable as of right (see CPLR
5701 [a] [2] [v]; see generally Solomon v Meyer, 103 AD3d 1025,
1026 [2013]; Martinez v Goldrose Mgt., Inc., 49 AD3d 466, 466
[2008]). We note that, while this appeal was pending, the
parties in the second CPLR article 78 proceeding settled their
dispute and withdrew that proceeding. However, there is no
indication that intervenor respondents have sought to avail
themselves of the permission to renew their motion before Supreme
Court. In light of this, and the fact that Supreme Court has yet
to reach the merits of their arguments, we decline to treat the
notice of appeal as an application for permission to appeal
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(see CPLR 5701 [c]).
Garry, J.P., Egan Jr., Lynch and Aarons, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court