Voyticky v. Gore

In a proceeding pursuant to Election Law article 16 to invalidate the Republican primary election held on September 15, 1987, for the party position of Male Member of the Republican State Committee from the 57th Assembly District, and to order a new primary election, the petitioner appeals from (1) a judgment of the Supreme Court, Kings County (Vinik, J.), entered October 1, 1987, which dismissed the petition, and (2) so much of an order of the same court (Dowd, J.), dated September 25, 1987, as denied that branch of the petitioner’s ex parte application which was to allow service of process on the respondent Cartrell B. Gore, Jr., by a method other than personal service.

Ordered that the appeal from the order dated September 25, 1987, is dismissed, without costs or disbursements, as no appeal lies from the denial of an ex parte application (see, CPLR 5701 [a] [2]; Matter of Bates v La Vallee, 33 AD2d 833; see also, CPLR 5704 [a]), and it is further,

Ordered that the judgment entered October 1, 1987, is affirmed, without costs or disbursements.

The last day on which to institute this proceeding was September 25, 1987, 10 days after the holding of the primary election (see, Election Law § 16-102 [2]). The respondent Cartrell B. Gore, Jr., who was declared the winner of the election for the party position sought by the petitioner, was not served with the order to show cause and petition until September 30, 1987. Accordingly, the petition was properly dismissed. Brown, J. P., Lawrence, Weinstein and Eiber, JJ., concur.