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Panetta v. Carroll

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 26, 2009

IN THE MATTER OF COSIMO PANETTA, APPELLANT,
v.
RICHARD CARROLL, ETC., ET AL., RESPONDENTS.

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the issuance of a certificate of occupancy, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Adler, J.), entered July 25, 2007, which granted that branch of the respondents' motion which was to dismiss the proceeding as time-barred and dismissed the proceeding.

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, FRED T. SANTUCCI and DANIEL D. ANGIOLILLO, JJ.

(Index No. 24093/06)

DECISION & ORDER

ORDERED that the order and judgment is affirmed, with costs.

None of the arguments raised by the petitioner on appeal were raised before the Supreme Court prior to its determination. Thus, the arguments are not properly before this Court on appeal (see Pekich v James E. Lawrence, Inc., 38 AD3d 632). Further, none of the arguments present a question of law which could not have been avoided if raised at the proper juncture. Thus, the arguments may not be reached for the first time on appeal (id.). Accordingly, the dismissal of the proceeding should be affirmed.

RIVERA, J.P., DILLON, SANTUCCI and ANGIOLILLO, JJ., concur.

20090526

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