IN RE: THOMAS W. REED

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THOMAS W. REED, II, PETITIONER–RESPONDENT, v. JAMES A. WALSH, ET AL., RESPONDENTS, AND LORI C. GARDNER, RESPONDENT–APPELLANT.

CAE 12–01973

Decided: December 21, 2012

PRESENT:  SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ. SCHLATHER, STUMBAR, PARKS & SALK, ITHACA (DIANE V. BRUNS OF COUNSEL), FOR RESPONDENT–APPELLANT. JAMES WALSH, BALLSTON SPA, FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum:  Petitioner filed a designating petition that purported to nominate him as the Independence Party's candidate for the office of Representative in Congress from the 23rd Congressional District of New York. After the New York State Board of Elections (Board) determined that the petition did not contain a sufficient number of valid signatures, petitioner commenced the instant proceeding to validate his designating petition.   Supreme Court, after a hearing, granted the petition and ordered the Board to place petitioner's name on the ballot for the general congressional election on the Independence Party line.   The court thereafter denied respondent Lori C. Gardner's motion to vacate that order, and she now appeals.

“An ‘appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ “ (Wisholek v. Douglas, 97 N.Y.2d 740, 742, quoting Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714).   Here, the general election at issue took place on November 6, 2012, and, in contrast to our authority to order a new primary election (see Election Law § 16–102[3];  Matter of Corrigan v Board of Elections of Suffolk County, 38 A.D.2d 825, 826–827, affd 30 N.Y.2d 603), we lack the authority to “remove the successful candidate from office or order a new general election” (Matter of Hanington v. Coveney, 62 N.Y.2d 640, 641;  see Matter of Conroy v. Levine, 62 N.Y.2d 934, 935;  Matter of Uciechowski v. Hill, 205 A.D.2d 825, 825).   The appeal is therefore moot, and, inasmuch as the exception to the mootness doctrine is not implicated here, we dismiss the appeal (see Hanington, 62 N.Y.2d at 641–642;  People ex rel. Geer v. Common Council of Troy, 82 N.Y. 575, 576;  Uciechowski, 205 A.D.2d at 825).

Frances E. Cafarell

Clerk of the Court