DiMatteo v. Niagara County Board of Elections

— Order unanimously reversed on the law without costs, in accordance with the following memorandum: Petitioner DiMatteo commenced this proceeding to validate his petitions designating him as a Liberal Party candidate for the office of Niagara County District Attorney. Respondent Snyder failed to answer or appear on the return date, and the court granted an order validating the designating petitions.

Thereafter, by order to show cause respondent Snyder moved for reargument. The court granted an order permitting reargument and adhered to its prior ruling validating the designating petitions. This appeal is from that part of the court’s order which, on reargument, validated the designating petitions. He requests this court to reverse and grant an order invalidating the petitions.

Snyder is not entitled to the relief he seeks because the court should not have granted his motion for reargument. Since respondent Snyder neither answered nor appeared in opposition to the petition, the order as to him was granted on default, and his proper remedy was to move to open the default. The motion for reargument cannot be treated as one to open the default because his motion papers contain no excuse for his failure to appear or answer. Because it was improperly granted, we reverse the order appealed from and dismiss respondent Snyder’s motion, leaving the prior order in full force and effect. (Appeal from order of Supreme Court, Niagara County, Doyle, J. — Election Law.) Present — Doerr, J. P., Denman, Boomer, Balio and Davis, JJ. (Order entered Aug. 21, 1987.)