In the Matter of Vilair Fonvil v. Denexandre

• Decision Date: 16 August 2011
• Citation: 928 N.Y.S.2d 467,87 A.D.3d 640,2011 N.Y. Slip Op. 06266
• Parties: In the Matter of Vilair FONVIL, appellant,v.Denet ALEXANDRE, respondent-respondent, et al., respondents.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 640
928 N.Y.S.2d 467
2011 N.Y. Slip Op. 06266

In the Matter of Vilair FONVIL, appellant,
v.
Denet ALEXANDRE, respondent-respondent, et al., respondents.

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

Aug. 16, 2011.

[87 A.D.3d 640] In a proceeding pursuant to Election Law § 16–102 to invalidate a petition designating Denet Alexandre as a candidate in a primary election to be held on September 13, 2011, for the nomination of the Democratic Party as its candidate for the public office of Member of the Rockland County Legislature for the 8th Legislative District, the petitioner appeals from a final order of the Supreme Court, Rockland County (Garvey, J.), entered August 4, 2011, which, after a hearing, and upon the denial of his application for an adjournment, in effect, denied the petition and dismissed the proceeding.

ORDERED that the final order is affirmed, without costs or disbursements.

The petitioner contends that the Supreme Court should have granted his application made during the hearing for an adjournment to secure the attendance of certain witnesses. The determination of that application was a matter resting within the Supreme Court's sound discretion ( see Farrell v. Gelwan, 30 A.D.3d 563, 817 N.Y.S.2d 143; Herbert v. Edwards Super Food Stores–Finast Supermarkets, 253 A.D.2d 789, 677 N.Y.S.2d 617; Klombers v. Lefkowitz, 131 A.D.2d 815, 816, 517 N.Y.S.2d 179; Michaels v. Dalimonte, 121 A.D.2d 370, 502 N.Y.S.2d 801). Considering, among other things, the petitioner's lack of due diligence in securing the attendance of those witnesses ( see Telford v. Laro Maintenance Corp., 288 A.D.2d 302, 303, 732 N.Y.S.2d 882; Herbert v. Edwards Super Food Stores–Finast Supermarkets, 253 A.D.2d at 789, 677 N.Y.S.2d 617), and that proceedings pursuant to the Election Law “require immediate action” because they are “subject to severe time constraints” ( Matter of Master v. Pohanka, 44 A.D.3d 1050, 1052, 845 N.Y.S.2d 376; see [87 A.D.3d 641] Matter of Tenneriello v. Board of Elections in City of N.Y., 104 A.D.2d 467, 468, 479 N.Y.S.2d 72, affd. 63 N.Y.2d 700, 479 N.Y.S.2d 978, 468 N.E.2d 1115), the Supreme Court providently exercised its discretion in denying the petitioner's application for an adjournment.

MASTRO, J.P., LEVENTHAL, CHAMBERS, ROMAN and MILLER, JJ., concur.