Baptiste v. Emmanuel

Aug 17, 2005
Versions:21 A.D.3d 503
799 N.Y.S.2d 752

(August 17, 2005)

In the Matter of JOANN A. BAPTISTE et al., Respondents, v ERNEST EMMANUEL, Appellant, et al., Respondent. [799 NYS2d 752]—In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Ernest Emmanuel as a candidate in a primary election to be held on September 13, 2005, for the nomination of the Democratic Party as its candidate for the public office of Member of the New York City Council, 45th Council District, the appeals are from (1) a final order of the Supreme Court, Kings County (Levine, J.), dated August 1, 2005, which, upon the appellant‘s failure to appear or answer, granted the petition, invalidated the designating petition, and directed the Board of Elections of the City of New York to remove the appellant‘s name from the ballot and (2) an order of the same court (Harkavy, J.), dated August 5, 2005, which, after a hearing, denied the appellant‘s motion to vacate the default.

Ordered that the appeal from the final order dated August 1, 2005, is dismissed, without costs or disbursements, as no appeal lies from an order made upon the default of an appealing party (see CPLR 5511; Matter of Porscha Monique J., 21 AD3d 415 [2005]; Matter of Palazzo v Manassier, 286 AD2d 460, 461 [2001]); and it is further,

Ordered that the order dated August 5, 2005, is affirmed, without costs or disbursements.

The Supreme Court providently exercised its discretion in denying the appellant‘s motion to vacate his default (see Matter of Infante v Curley, 297 AD2d 396, 396 [2002]; Matter of Diaz v Green, 275 AD2d 425, 426 [2000]; cf. Matter of Bradley v Evans, 297 AD2d 392, 393 [2002]). The appellant failed to establish a reasonable excuse for his default (see Matter of Infante v Curley, supra at 396; Matter of Diaz v Green, supra at 426; cf. Matter of Bradley v Evans, supra at 393).

The appellant‘s remaining contentions are without merit.

Prudenti, P.J., Adams, Luciano, Skelos and Lifson, JJ., concur.