Opinion
2012-12-21
In the Matter of James FRASCATI, Petitioner–Appellant, v. 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.
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.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
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 ( seeCPLR 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 A.D.3d 1153, 1154, 885 N.Y.S.2d 226;Matter of Karakonstadakis v. Kokonas, 173 A.D.2d 706, 706–707, 571 N.Y.S.2d 1014;see generally Litas Inv. Co. v. Vebeliunas, 148 A.D.2d 680, 682, 539 N.Y.S.2d 429). We further note that this appeal does not fall within the exception to the mootness doctrine ( see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.