From Casetext: Smarter Legal Research

Matter of Murray v. Lord

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 18, 1974
46 A.D.2d 721 (N.Y. App. Div. 1974)

Opinion

October 18, 1974

Appeal from the Appellate Division, Third Judicial Department.

Present — Marsh, P.J., Witmer, Cardamone, Goldman, Del Vecchio, JJ. (Order entered October 14, 1974.)


Judgment unanimously affirmed, without costs. Memorandum: We concur in Special Term's dismissal of the petition "upon the ground that the proceeding is time barred" ( Matter of Novak v. Nash, 40 A.D.2d 728, affd. 31 N.Y.2d 710; Matter of Van Lengen v. Balabanian, 26 A.D.2d 622, affd. 17 N.Y.2d 920). Petitioner seeks to secure a subdivision (2) of section 330 of the Election Law determination by the use of an article 78 proceeding. The Court of Appeals has expressly stated that article 78 may not be used as a substitute for section 330 of the Election Law after that section's time limitation has expired, as is the case in the instant proceeding. This principle was succintly stated in the following statement from Matter of Mansfield v. Epstein ( 5 N.Y.2d 70; 74): "There is no question that the Supreme Court has summary jurisdiction of proceedings brought under section 330 of the Election Law, but in election cases a court may only exercise the powers granted to it within the framework of the procedures prescribed by the statute. Under these circumstances, Special Term, having no proceeding before it brought pursuant to section 330 of the Election Law, was powerless to initiate a proceeding or treat the article 78 proceeding as such after the expiration of the limitation period." Although not legally determinative of the issue before us, we note that the Special Term determination has the merit of not disenfranchising the voters who cast their ballots for the slate of delegates who unanimously nominated respondent Staley.


Summaries of

Matter of Murray v. Lord

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 18, 1974
46 A.D.2d 721 (N.Y. App. Div. 1974)
Case details for

Matter of Murray v. Lord

Case Details

Full title:In the Matter of WILLIAM R. MURRAY, Appellant v. VICTOR LORD et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 18, 1974

Citations

46 A.D.2d 721 (N.Y. App. Div. 1974)

Citing Cases

White v. Joyner

cial one (citation omitted)"]; Rivera v. Northrup , 26 A.D.2d 612, 271 N.Y.S.2d 443 [4th Dept. 1966], affd 17…

Nowinski v. N.Y.C. Bd. of Elections

Although the petitioners commenced this proceeding pursuant to CPLR article 78, they seek to remove…