Matter of Jordan v. Carter

Matter of Jordan v Carter (2022 NY Slip Op 03199) Matter of Jordan v Carter 2022 NY Slip Op 03199 Decided on May 13, 2022 Appellate Division, Second Department 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. Decided on May 13, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department VALERIE BRATHWAITE NELSON, J.P. JOSEPH J. MALTESE LINDA CHRISTOPHER JOSEPH A. ZAYAS, JJ. 2022-03388 (Index No. 511168/22) [*1]In the Matter of James Jordan, et al., petitioners-respondents, v Deborah Carter, appellant, Board of Elections in the City of New York, respondent-respondent. DECISION & ORDER In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Deborah Carter as a candidate in a primary election to be held on June 28, 2022, for the party position of Female Member of the Democratic State Committee for the 46th Assembly District, Deborah Carter appeals from a final order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated May 6, 2022. The final order, insofar as appealed from, dismissed Deborah Carter's cross claim, denominated as a counterclaim, to validate the designating petition. ORDERED that the final order is affirmed insofar as appealed from, without costs or disbursements. On April 18, 2022, the petitioners, James Jordan and Dionne L. Brown-Jordan, commenced this proceeding, inter alia, to invalidate a petition designating Deborah Carter as a candidate in a primary election to be held on June 28, 2022, for the party position of Female Member of the Democratic State Committee for the 46th Assembly District. The petitioners named Carter and the Board of Elections in the City of New York (hereinafter the Board) as respondents on the petition. On April 22, 2022, Carter filed an answer which contained a cross claim, denominated as a counterclaim, to direct the Board to validate the designating petition. In a final order dated May 6, 2022, the Supreme Court, inter alia, dismissed Carter's cross claim. Carter appeals. Although Carter denominated her claim as a counterclaim, it was, in reality, a cross claim because it sought relief against the Board, which was a respondent in the proceeding (see CPLR 3019[a], [b]). "[A] cross claim is not permitted in a special proceeding without leave of the court" (Matter of O'Connor v D'Apice, 156 AD2d 610, 612). Because Carter did not seek leave to interpose her cross claim, it was not properly before the court (see CPLR 402; Matter of Espinal v Sosa, 153 AD3d 819, 820-821; Matter of Aguirre v Hernandez, 131 AD3d 716, 716-717; Matter of White v Bilal, 21 AD3d 573, 574; Matter of Koplen v Austin, 5 AD3d 515, 516). Carter's contention that Matter of Ambro v Coveney (20 NY2d 850) compels a different result is without merit. Accordingly, the Supreme Court properly dismissed her cross claim to validate the designating petition. The parties' remaining contentions either are not properly before this Court or need not be reached in light of our determination. BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and ZAYAS, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court