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Matter of Conroy v. Levine

Court of Appeals of the State of New York
Jun 14, 1984
62 N.Y.2d 934 (N.Y. 1984)

Opinion

Argued June 5, 1984

Decided June 14, 1984

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, John S. Lockman, J.

Matthew A. Tedone for appellants.

Stephen G. Limmer for Diane Levine and others, respondents. Steven R. Schlesinger for Michael Wolin and another, respondents.


MEMORANDUM.

The order of the Appellate Division should be affirmed, without costs.

Petitioners brought these summary proceedings under section 15-138 of the Election Law to declare the Port Washington North general village election held on March 20, 1984 null and void, to remove the declared successful candidates for Village Trustees from office and to order a new general election.

The successful candidates here filed their respective oaths of office and assumed the offices of Village Trustees. Inasmuch as Supreme Court has no jurisdiction in a summary proceeding such as this to remove successful candidates from office or order a new election ( Matter of Hanington v Coveney, 62 N.Y.2d 640; Matter of Corrigan v Board of Elections, 38 A.D.2d 825, 826, affd 30 N.Y.2d 603), the relief petitioners seek can be granted, if at all, only in a plenary action in the nature of quo warranto. ( Id.)

The attempt by petitioners to distinguish our decision in Matter of Hanington v Coveney ( supra) on the ground that petitioners in that case proceeded pursuant to section 16-102 rather than section 15-138 is unpersuasive. Section 15-138 was not intended to enlarge the summary jurisdiction of Supreme Court over general elections; it is merely a recodification of prior law which required proceedings such as this to be brought in quo warranto. (See McKinney's Session Laws of NY, 1972, pp 3408-3409; Election Law, former § 536, L 1972, ch 895, § 2; L 1972, ch 895, § 3; see, also, Matter of Mason v Tapel, 71 A.D.2d 1050.) As a result, Supreme Court was powerless to grant the summary relief requested. To the extent Matter of Nicholson v Blessing ( 88 A.D.2d 958) is to the contrary, it is not to be followed.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, SIMONS and KAYE concur; Judge MEYER taking no part.

Order affirmed, without costs, in a memorandum.


Summaries of

Matter of Conroy v. Levine

Court of Appeals of the State of New York
Jun 14, 1984
62 N.Y.2d 934 (N.Y. 1984)
Case details for

Matter of Conroy v. Levine

Case Details

Full title:In the Matter of THOMAS F. CONROY et al., Appellants, v. DIANE LEVINE, as…

Court:Court of Appeals of the State of New York

Date published: Jun 14, 1984

Citations

62 N.Y.2d 934 (N.Y. 1984)
479 N.Y.S.2d 187
468 N.E.2d 25

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