Opinion
2022–03346 Index No. 708601/22
05-12-2022
In the Matter of Albert BALDEO, appellant, v. Mizanur R. CHOUDHURY, respondent-respondent, et al., respondent.
DECISION & ORDER
In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a petition designating Mizanur R. Choudhury as a candidate in a primary election to be held on June 28, 2022, for the nomination of the Democratic Party as its candidate for the public office of Member of the New York State Assembly for the 24th Assembly District, the petitioner appeals from a final order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered May 5, 2022. The final order, upon the denial of the petitioner's application for an adjournment, dismissed the proceeding.
ORDERED that the final order is affirmed, without costs or disbursements.
The petitioner contends that the Supreme Court should have granted his application for a one-week adjournment to secure the attendance of witnesses at the hearing on his petition, inter alia, to invalidate a certain designating petition. The determination of that application was a matter resting within the court's sound discretion (see Selene Fin., L.P. v. Firshing, 203 A.D.3d 861, 863, 160 N.Y.S.3d 882 ; Vassiliou–Sideris v. Nautilus, Inc., 186 A.D.3d 1756, 129 N.Y.S.3d 796 ; Matter of Braunfotel v. Feiden, 172 A.D.3d 1451, 1451, 102 N.Y.S.3d 90 ; Matter of Fonvil v. Alexandre, 87 A.D.3d 640, 640, 928 N.Y.S.2d 467 ). Considering, among other things, the petitioner's lack of due diligence in securing the attendance of the witnesses (see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 ; Park Lane N. Owners, Inc. v. Gengo, 151 A.D.3d 874, 876, 58 N.Y.S.3d 81 ; Matter of Fonvil v. Alexandre, 87 A.D.3d at 640, 928 N.Y.S.2d 467 ), and that "proceedings pursuant to the Election Law require immediate action because they are subject to severe time constraints" ( Matter of Fonvil v. Alexandre, 87 A.D.3d at 640, 928 N.Y.S.2d 467 [internal quotation marks omitted]; see Matter of Carr v. Kepi, 198 A.D.3d 847, 848, 156 N.Y.S.3d 296 ; Matter of Alfieri v. Bravo, 172 A.D.3d 1360, 1363, 103 N.Y.S.3d 156 ; Matter of Stavisky v. Lee, 142 A.D.3d 933, 933, 37 N.Y.S.3d 552 ; Matter of Master v. Pohanka, 44 A.D.3d 1050, 1052, 845 N.Y.S.2d 376 ), the court providently exercised its discretion in denying the petitioner's application for a one-week adjournment.
Furthermore, upon the denial of the petitioner's request for an adjournment, the Supreme Court providently exercised its discretion in dismissing the proceeding. The petitioner's counsel made it clear that he would not be prepared to proceed with the hearing even if the court were to grant him a 48–hour adjournment to April 28, 2022, and he maintained that position even after the court indicated it would dismiss the proceeding rather than grant the request for a one-week adjournment. Under these circumstances, the dismissal of the proceeding was a provident exercise of the court's discretion (see Johnson v. Aguwa, 176 A.D.3d 1039, 1041, 108 N.Y.S.3d 895 ; Geffner v. Mercy Med. Ctr., 167 A.D.3d 571, 573, 89 N.Y.S.3d 265 ; Hansen v. Loomis, 137 A.D.2d 584, 585, 524 N.Y.S.2d 476 ).
The petitioner's remaining contentions are either without merit or not properly before this Court.
IANNACCI, J.P., CHAMBERS, GENOVESI and DOWLING, JJ., concur.