SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 22, 2008
IN THE MATTER OF PHILIP RAGUSA, ETC., PETITIONER- APPELLANT,
BOARD OF ELECTIONS IN THE CITY OF NEW YORK, ET AL., RESPONDENTS,
FRANK PADAVAN, RESPONDENT-APPELLANT;
JAMES GENNARO, RESPONDENT- RESPONDENT.
In a proceeding pursuant to Election Law article 16, Philip Ragusa and Frank Padavan appeal from an order of the Supreme Court, Queens County (Kerrigan, J.), dated December 10, 2008, which denied Philip Ragusa's motion, inter alia, to direct the Board of Elections in the City of New York, in effect, to refuse to cast approximately 1,700 ballots found by Board of Elections personnel to be preliminarily invalid in the general election held on November 4, 2008, for the public office of State Senator for the 11th Senatorial District, and granted the cross motion of James Gennaro, inter alia, to direct the Board of Elections in the City of New York, in effect, to cast those ballots.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RUTH C. BALKIN and THOMAS A. DICKERSON, JJ.
(Index No. 27251/08)
DECISION & ORDER
ORDERED that the order is modified, on the law, (1) by adding the words "as premature" after the words "petitioner's motion is denied," (2) by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion as premature, and (3) by adding thereto a provision remitting the matter to the Board of Elections in the City of New York for further proceedings; as so modified, the order is affirmed, without costs or disbursements.
At a general election held on November 4, 2008, Frank Padavan and James Gennaro were the two candidates for the public office of State Senator for the 11th Senatorial District. Following the election, the Board of Elections in the City of New York (hereinafter the Board of Elections) began the review required by Election Law § 9-209. During the process, a dispute arose between the two Commissioners of the Board of Elections as to whether the parties had been given an opportunity pursuant to Election Law § 9-209(2)(d) to make objections to the casting or refusal to cast approximately 1,700 ballots found by Board of Elections personnel to be preliminarily invalid. The parties then brought a motion and cross motion in the instant proceeding asking the Supreme Court to resolve the dispute.
The Supreme Court should have denied the motion and cross motion as premature. Election Law § 16-106 vests the Supreme Court with subject matter jurisdiction in a proceeding to contest the "casting . . . or refusal to cast" certain ballots (Election Law § 16-106), provided that it is brought within 20 days after the election or the Board's "alleged erroneous . . . determination was made" (Election Law § 16-106; see Matter of Alessio v Carey, 10 NY3d 751, 753). Here, the Board of Elections has not yet made a determination, as the Election Law also provides that "[a]ll actions of the board shall require a majority vote of the commissioners prescribed by law for such board" (Election Law § 3-212). Until the Board of Elections has made a determination whether to cast or refuse to cast the ballots in question, or is deadlocked on that issue, the Supreme Court does not have jurisdiction to intervene in the process (Election Law § 16-106; § 9-209[d]; cf. Matter of Alessio v Carey, 10 NY3d 751).
MASTRO, J.P., FLORIO, BALKIN and DICKERSON, JJ., concur.
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